Court File and Parties

Court File No.: CR-21-30000455 Date: 202200812 Superior Court of Justice – Ontario

Re: HER MAJESTY THE QUEEN, Respondent And: Jabril ABDIRAHMAN, Abdullahi ABDIKARIM, Abdinaim Hussein, Applicants

Before: S.F. Dunphy J.

Counsel: James Damaskinos and Bari Crackower (PPSC) and Philip Enright (MAG), for the Crown/Respondent Saul Moshé-Steinberg for the Defendant Abdikarim, David Newton for the Defendant Abdirahman and Jamil Sawani, for the Defendant Hussein

Heard at Toronto: January 31, February 1, 2 and 7, May 25 and August 9, 2022

REVISED[^1] REASONS FOR DECISION – Joint Omnibus Charter Application

[1] This is a joint omnibus application by the defendants for relief pursuant to s. 7, 9, 10(a), 10(b), 11(d) and s. 24(1) and s. 24(2) of the Canadian Charter of Rights and Freedoms. The hearing of this application proceeded in two stages. The first stage heard in January and early February 2022 concerned the challenge to the validity of the search warrant pursuant to s. 8 of the Charter. I released my decision dismissing that aspect of the application on February 18, 2022 (R. v. Abdirahman, 2022 O.J. No. 1032). These reasons concern the balance of the omnibus application which proceeded based upon the evidence adduced in the first phase of the hearing plus the additional evidence adduced on the May 25, 2022.

[2] The three accused applicants were the occupants of a North York apartment building when police made a dynamic entry executing a warrant to search the premises on May 25, 2020. During the course of the search of the unit, certain handguns and a quantity of controlled substances were found which form the foundation of the 20-count indictment currently scheduled to be tried before the Superior Court on September 12, 2022. Among the items found during the search of the premises was approximately 1.3 kg of cocaine and a handgun in a Walmart bag on a countertop a few feet from where two of the three defendants were seated when the warrant was executed, a second handgun found in a kitchen cupboard and approximately 32 g of crack cocaine and 252.4 g of fentanyl found secreted in a vanity light and a ceiling fan inside an ensuite bathroom.

[3] The remaining issues in this application concern the manner in which the warrant was executed (i.e. the dynamic entry), the manner in which the accused were detained and arrested during the search (handcuffed and made to lie on the floor and then marched down 33 flights of stairs), a Level III search of each of the applicants allegedly conducted without reasonable grounds, the alleged failure to preserve CCTV evidence from the building’s security cameras and delays in fulfilling the applicant’s informational and implementation rights under s. 10(a) and (b) of the Charter. The relief sought is either a full stay of proceedings pursuant to s. 7 and s. 24(1) of the Charter or the exclusion of evidence pursuant to s. 24(1) and (2) of the Charter.

Analysis and discussion

(a) Execution of search warrant: dynamic entry and s. 7, s. 8 and s. 9 of the Charter

[4] I shall not repeat at length the evidence summarized in my earlier rulings regarding the validity of the warrant. The ITO relied very extensively upon information received by police from a Confidential Informant regarding trafficking activities of the named target of the warrant (the accused Mr. Abdirahman), the use by that target of the subject premises and his possession of one or more handguns. I found the information provided by the CI to be sufficiently credible, compelling, and corroborated to support the warrants sought in the first (Garofoli) phase of this application. In particular, I characterized the evidence of the CI as highly compelling.

[5] At 2:45pm on May 25, 2020, police were granted two Criminal Code search warrants. The first warrant authorized the search of the subject North York condominium unit and its associated storage locker. The warrant authorized police to search for firearms, ammunition and documents related to the purchase or operation of a firearm. The target of the investigation was the first accused, Mr. Abdirahman. The offence being investigated was possession of a restricted semi-automatic handgun. The second warrant authorized the search of a Mercedes automobile believed to be associated with Mr. Abdirahman for the same items and in connection with the same investigation.

[6] While waiting for the warrants to be signed, police maintained surveillance of the building in which the subject condominium unit was located. Police followed the Mercedes vehicle when it exited the building to another location. When the warrant was finally received, the vehicle was stopped and searched and its driver detained. Police stood by at the building in the meantime.

[7] Based upon building CCTV records and the use of the key fob associated with the subject unit, police originally believed that the target of the investigation, Mr. Abdirahman, was the one seen driving away in the Mercedes when it was followed. As it turned out, that assumption was wrong. A different man was driving the subject Mercedes. A semi-automatic handgun was discovered in the front passenger foot area of the automobile when the vehicle was searched. This information was relayed to the team at the condominium building prior to the execution of the search warrant on the subject condominium unit.

[8] The detective in charge (Det. Taylor) had arranged for members of the Emergency Task Force to assist in executing the search warrant inside the condominium unit. At 4:21pm, a tactical briefing was held between members of the investigation team and the ETF members. The information relative to the search of the Mercedes automobile had by then been received.

[9] It was decided that the ETF team would breach the door of the unit with a battering ram, announce the presence of police enforcing a search warrant and then use a distraction device. After the ETF members had secured the unit, the unit would be turned over to investigators. The ETF squad assembled consisted of approximately ten police officers, some equipped with rifles, others “hands free” with handguns. The latter officers were to be tasked with detaining any individuals found in the unit with handcuffs, having collected handcuffs from the investigation team for the purpose.

[10] The officers assembled near the area of the unit at 4:50 pm and commenced their dynamic entry in accordance with the plan described above at 4:56 pm. The door was breached, the presence of police and the fact of a warrant being executed was announced and the distraction device was deployed. In effecting the dynamic entry, the door to the condominium unit was damaged. In addition, the distraction device scorched the floor area where it went off and smoke from the distraction device set off the smoke alarms in the building causing all of the elevators to be temporarily removed from service.

[11] The applicant defendants submit that their rights to be free from unreasonable search (Charter s. 8), to be free from arbitrary detention (Charter s. 9) and their right to life, liberty and security of the person (Charter, s. 7) were infringed by reason of what is alleged was excessive force in resorting to dynamic entry without a proper and due consideration of less violent alternatives.

[12] There is no dispute between the parties that the “no knock” or dynamic entry is not the default or ordinary method of executing a search warrant. In Eccles v. Bourque et al., 1974 191 (SCC), [1975] 2 SCR 739, Dickson J. held (at SCR p. 747) that “[i]n the ordinary case police officers, before forcing entry, should give (i) notice of presence by knocking or ringing the doorbell, (ii) notice of authority, by identifying themselves as law enforcement officers and (iii) notice of purpose, by stating a lawful reason for entry. Minimally they should request admission and have admission denied although it is recognized there will be occasions on which, for example, to save someone within the premises from death or injury or to prevent destruction of evidence or if in hot pursuit notice may not be required.”

[13] In R. v. Cornell, 2010 SCC 31, [2010] 2 SCR 142, the majority decision affirmed the “ordinary case” rule described by Dickson J. in Eccles and found that where police depart from this rule, there is an onus upon them to explain why they did so. To discharge this onus, the Crown must lay an evidentiary framework to support the conclusion that police had reasonable grounds at the relevant time for being concerned about the prospects for harm to themselves or the occupants or the destruction of evidence. In assessing that evidentiary framework, the majority decision emphasized that “the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require” (Cornell at para. 24). Once again, the analysis is undertaken from the perspective of what the police knew or was reasonably available to them at the time and not in the unfair light of hindsight or adopting the approach of the Monday morning quarterback.

[14] The court in Cornell adopted the comments of Slatter J.A. in the court below that “[s]ection 8 of the Charter does not require the police to put their lives or safety on the line if there is even a low risk of weapons being present” (at para. 20 of Cornell).

[15] The issue here is whether the present case presented exigent circumstances justifying a departure from the “ordinary case” described by Dickson J. in Eccles and affirmed by the Supreme Court in Cornell.

[16] I am fully satisfied that the decision to make a dynamic entry in this case was reasonable and justified based on the information available to police at the time.

[17] Prior to effecting entry, the police had credible and current information that a person identified as Mr. Abdirahman was believed to be involved in trafficking controlled substances, that he possessed one or more handguns and that he was believed to be using the condominium unit but was not the registered owner or tenant thereof. They also had information regarding Mr. Abdirahman’s criminal record and pending charges in Alberta. His record included 10 prior convictions including one for possession of a weapon. He was also the subject of pending charges of possession of a prohibited weapon, trafficking and possession of proceeds and of property obtained by crime.

[18] Those circumstances, viewed objectively, gave rise to a reasonable apprehension of risk to officer safety of precisely the sort that Dickson J. described as amounting to an exception to the Eccles knock-first rules. The information regarding the connection between Mr. Abdirahman, one or more firearms and the subject condominium unit was described by me as compelling in my review of the warrant in the first phase of his application. Police had reasonable grounds for believing that Mr. Abdirahman may be present in the unit and if present that he had one or more firearms.

[19] The information base of the police evolved over the course of the day while waiting for the return of the warrants and pursuing their investigation. That evolution did not resolve or diminish the level of existing risk identified. The building’s security logs revealed that the key fob associated with the unit had been used that day both to access the parking garage and to access the floor of the building where the unit was situated. A motor vehicle associated with the subject-unit by its parking spot, use of the fob and police observation had been followed, searched and a handgun discovered in it but not Mr. Abdirahman. This development corroborated to some degree the association of the subject condominium unit with firearms but it also confirmed that Mr. Abdirahman remained at large. The information connecting Mr. Abdirahman to the subject unit remained current, credible and compelling and none of the events of that day detracted from that reasonable conclusion.

[20] There thus remained reasonable grounds to believe that Mr. Abdirahman may be in the subject unit and that he may be armed. To characterize this state of affairs as offering “no evidence to ground any concerns for officer safety or the destruction of evidence” as is suggested by the applicants is simply untenable.

[21] The applicants point to evidence from Det. Taylor that such entries are commonly employed in relation to firearms-related searches and that the decisions made by the ETF officers in this case, including as to the use of distraction devices are common when firearms are expected to be found.

[22] The fact that similar facts lead to similar conclusions is no basis to conclude that police have somehow turned Eccles and Cornell on their head and have made routine that which was supposed to be exceptional. One should expect similar decisions to be made in similar circumstances. The relative ratio of warrants involving a search for firearms may possibly be higher today than it was when Eccles was decided given the growth in gun crime generally, but the applicable principles are driven by the circumstances present when the warrant is being executed and not by an arbitrary numeric quota of dynamic vs knock-first warrants. Police are not required to calibrate the degree of risk present within fine degrees of tolerance nor are they required to put their lives or safety at risk where there is a material risk of firearms being present. The decision was made to effect a dynamic entry and to use a distraction device. This granted the ETF officers a window to make an entry and to overwhelm any opposition before the occupants would have a chance to react. Confusion and the immediate presence of overwhelming force operated as powerful dissuaders in this case and helped ensure a peaceful outcome in circumstances where there were material risks of a less peaceful outcome had this course of action not been selected. I find that the decision to adopt this plan of action was a reasonable one in the circumstances known prior to entry.

[23] I am not persuaded to consider the matter differently by the suggestion that the way in which things turned out after the warrant was executed ought somehow to impact my assessment of the degree of risk present when the decision was actually made. While the three occupants of the condominium offered no resistance to police in their surprised state and were compliant, one of the three (Mr. Abdirahman) was initially observed to make a movement towards the kitchen where a bag containing narcotics and a firearm was located a few minutes later. That he was dissuaded from taking any further steps in that direction by Officer Bacon pointing a firearm directly at him does not diminish the fact that the first instinct of at least one of the occupants was to attempt resistance.

[24] I find no breach of the Applicants’ rights under s. 7, s. 8 or s. 9 of the Charter arising from the choice of police to make a dynamic entry using a distraction device when executing the search warrant.

(b) Manner of Detention of accused during search: s. 7, s. 8 and s. 9 Charter

[25] Following the breaching of the door to the unit and the setting off of the distraction device, members of the ETF entered the unit. Upon entry, they announced themselves as police under a search warrant and ordered all occupants to get down and lie on the floor. Mr. Abdirahman and Mr. Hussein were seated on a couch in the living room when police entered the unit. Mr. Abdikarim was in the master bedroom in his boxers and an undershirt.

[26] As the ETF officers announced themselves and entered the unit, Mr. Hussein was already in the process of complying with the police command to get down. I described earlier Mr. Abdirahman’s brief gesture suggesting an intent to try to get to the kitchen. It does not appear that Mr. Abdirahman’s brief movement was more than the beginnings of a gesture that was quickly abandoned when he saw the gun trained on him by Officer Bacon. He too complied with the order to get down on the ground. Mr. Hussein and then Mr. Abdirahman were handcuffed where they lay on the ground by Officer Bacon. This accomplished, Officer Bacon continued to clear the premises, searching the apartment to see if there were any other occupants.

[27] Officer Ladurantye and Officer Salermo entered the master bedroom where Mr. Abdikarim was located. By the time they entered, Mr. Abdikarim was already lying on the floor complying with the command made a few moments earlier when police first entered. Officer Salermo placed handcuffs on him. Mr. Abdikarim uttered some form of verbal protest about what was going on but did not resist the handcuffs being applied.

[28] Having secured the three occupants immediately visible, the ETF team proceeded to clear the unit. Having verified that there were no other occupants, the ETF team turned over the unit to Det. Taylor and the investigation team at 5:05 pm. The three co-accused would have been handcuffed and lying face-down on the floor by 5:00 pm if not a minute or two earlier. All three were in that position when the ETF team turned the premises over to the investigators at 5:05 pm. The ETF team then evacuated the premises within a minute or two.

[29] More or less immediately after entering the unit at the head of his four-person investigation team, Det. Taylor observed a blue Walmart bag on the kitchen table in the unit. Upon examination of the bag, he could see that it appeared to contain a firearm and a package that he believed contained a controlled substance resembling cocaine. This information was audibly shared with the rest of his investigating team who were just a few steps behind him. This occurred within the first few moments of the investigation team entering the unit. At that point, Det. Taylor instructed D.C. Ellis to caution the detained men and to arrest them for possession of a firearm and a controlled substance. That audible command was heard by the team.

[30] D.C. Syed was the member of the investigating team tasked with taking photographs of the scene (i.e. the designated SOCO officer). Upon entering, he learned of the firearm and narcotics discovered in the kitchen. He was ordered by Det. Taylor to start taking his SOCO photographs and to begin by recording the location of the three detained occupants. This he proceeded to do. He began by photographing the location of Mr. Hussein and Mr. Abdirahman who were lying on the floor in the living room area just inside the door and beside the kitchen area where the bag containing the gun and narcotics had been found.

[31] When Officer Syed got to the master bedroom, he took the SOCO photos he had been asked to take of Mr. Abdikarim and then, along with D.C. Ellis, assisted Mr. Abdirkarim in getting dressed. This took a few minutes. By the time he brought Mr. Abdikarim out of the bedroom, he and the other two accused men were being assembled in the hallway prior to being turned over to the transport officers.

[32] By approximately 5:17 pm (approximately 12 minutes after the ETF turned over the premises to the investigation team) the three accused persons had been assembled in the hallway. I shall be reviewing the adequacy of compliance with their s. 10 Charter rights below.

[33] By 5:25 pm, D.C. Syed and Det. Taylor escorted the three down the 33 flights of stairs to the ground level handcuffed as they were with their hands behind their backs due to the unavailability of elevators. At 5:40 pm they were turned over to the transport officer to be transported to 42 Division. The evacuation down the stairs occurred without incident.

[34] The applicants submit that the manner of their arrest violated their rights under s. 8 (unreasonable search) and s. 9 (arbitrary detention) of the Charter. They point to (i) the arrest of the three accused at gunpoint by members of the ETF squad that effected the dynamic entry, (ii) the handcuffing of the accused lying face down on the floor where they were left (iii) their humiliation by having their photographs taken where they lay; and (iv) by marching the accused down 33 flights of stairs prior to transporting them to the station. They also state that these same actions exceed the authorized use of force by police and warrant a finding of breach under s. 7 of the Charter.

[35] There is no basis to suggest that the SOCO photographs taken by Officer Syed were taken with any view to “humiliate” any of the accused nor is there any evidence that any such humiliation in fact ensued. The taking of such photographs to record the “pre-search” status of the premises to be searched is both a standard and a salutary practice. Such evidence will be relevant at trial when considering questions relating to the possession of the handgun and the controlled substances located during the search that followed. D.C. Syed’s first priority after taking the photographs belies any motive to humiliate. He took care to ensure that Mr. Abdikarim was able to be properly clothed before taking him outside and even retrieved Mr. Abdikarim’s jeans from the living room at the latter’s request.

[36] There is similarly no basis to suggest that taking the co-accused down the stairs prior to transporting them to the station for processing amounted to a breach of any Charter rights. This was nothing more than a pragmatic, but reasonable choice made in the face of the existing circumstances.

[37] After the three detained men were informed of the reason for their arrest and informed of their right to counsel in the hallway, they needed to be transported to the division for processing. The elevators were out of service due to the fire alarm. None of the three co-accused had any apparent mobility impairments that might have made an exit by the stairwell impractical. It was reasonable and practical to opt to take three apparently healthy young men down the stairs to exit the building. There is no evidence that anything unsafe was associated with the evacuation method selected. Det. Taylor and Officer Syed escorted the three detainees down the stairs at approximately 5:25 pm without incident and handed them over to the transport officers at approximately 5:40 pm from where they were taken to 42 Division for processing.

[38] The fact that an ETF team with firearms in hand secured the premises does not alter the analysis under s. 7, s. 8 or s. 9 of the Charter. As already discussed, there was a reasonable apprehension that Mr. Abdirahman would be in the unit and that he would be armed or have arms to hand. The only evidence of firearms being trained an any individual during the initial phase of the warrant execution is the evidence of Officer Bacon that he aimed his pistol at Mr. Abdirahman when the latter appeared to make a gesture to go towards the kitchen. The pointed firearm was all it took to dissuade Mr. Abdirahman and bring him into compliance. I cannot find that the mere presence of firearms in the hands of police securing premises for a search for unlawfully possessed firearms constituted excessive force or made the search being undertaken an unreasonable one.

[39] This leaves me to consider the use of handcuffs and the period of time during which the three men were required to lie face down with their hands restrained behind their backs. I think that it is logical to examine this question in two parts: when the detained men were under the control of the ETF team and when they were under the control of the investigative team.

[40] The actions and decisions of the ETF during those initial few minutes of the execution of the warrant need to be viewed in their true context and not in the artificial light of microanalysis with the benefit of hindsight.

[41] The involvement of the ETF team in the early phase of executing the search warrant was by design short. Their primary goal was to secure the premises safely and they accomplished this goal swiftly and without inflicting any physical harm upon anyone. The task of applying handcuffs to Mr. Hussein and Mr. Abdirahman, including the time needed to dissuade Mr. Abdirahman from taking any further steps to head towards the kitchen, occupied no more than about a minute from the time of the breach. The task of getting Mr. Abdikarim detained and in handcuffs may have taken slightly longer but seems unlikely to have taken more than another minute or two at most. The three men were thus handcuffed and lying on the floor face down for something in the order of five to seven minutes prior to the turnover of the premises from the ETF to the investigation team.

[42] The short-term discomfort of the three detained men might have been more sensitively handled viewed in hindsight but it was short-term and reasonably balanced against the need to maintain safety for both the officers securing the premises and the occupants found in them. The situation prevailing during those initial nine minutes was one which, while somewhat routine for the officers involved by reason of their training and experience, was nevertheless objectively dynamic and chaotic given the ringing fire alarm, the need to verify that no other possible source of danger lay hidden in some unknown recess of the unit and the need to keep the three detained men both safe and compliant while that search was completed and the absence of further danger confirmed. During this time, police need to be in a position to discover or respond to danger without any more distraction than is necessary. The ETF turned over the premises to the investigation team led by Det. Taylor nine minutes after breaching the door (i.e. at 5:05 pm).

[43] In R. v. Pileggi, 2021 ONCA 4 the Court of Appeal considered the use of handcuffs in the initial phases of the detention of an individual in a residential environment at least somewhat similar to the present case. At para. 48, Trotter J.A. noted that considering “this issue in the broader context, I cannot find fault with the trial judge's conclusion that there was no infringement of s. 9 of the Charter. All of the evidence points to the unknown variables the police face when they enter a home to execute a search warrant, particularly as it relates to the presence of others in the place to be searched (an aspect of P.C. Black's testimony that I return to below). In this case, the evidence supports the conclusion that the situation was not safe, or completely under control, until the house was cleared.”

[44] That same analysis applies to the situation faced by the ETF officers in the moments after entering the unit in this case quite precisely.

[45] The responsibility for the three detained individuals passed from the ETF to the four person investigation team headed by Det. Taylor at 5:05 pm. The ETF team would have packed up and exited the premises at or shortly after that time. There was a short time of overlap when the incoming time was entering and the larger outgoing team was leaving. Within moments of the turn-over, Det. Taylor had identified a suspected controlled substance and firearm in a bag itself sitting in an open area of the unit steps away from where all three detained men had been found. He decided to arrest all three occupants for possession of a firearm and of a controlled substance.

[46] I have no hesitation in concluding that Det. Taylor then had reasonable grounds to do so considering the information known and assembled in the ITO, the information learned earlier that day while maintaining surveillance and the observations made in the bag inside the unit immediately after entering.

[47] Det Taylor announced his discovery and his order to proceed with arresting the three men to the members of his team who were by then all present in the unit. This announcement and decision was made at or very shortly – perhaps a minute – after 5:05 pm.

[48] At that point in time, the three detained men remained lying face down on the floor with their hands cuffed behind their backs. They remained in that position for a period of time that cannot be precisely measured at this juncture but which was certainly somewhat less than the eleven or twelve minutes that elapsed before the three men were assembled in the hallway outside the unit to be formally given their s. 10 Charter rights. By 5:17 pm, all three individuals had been brought to their feet and escorted outside of the unit to the hallway for that purpose.

[49] Once again, I find that Trotter J.A.’s observations in Pillegi (at para. 49) are quite precisely applicable here:

The police were also justified in using handcuffs once they cleared the house. I disagree with the appellant's submission that his compliance to that point required the removal of the handcuffs. There was no guarantee that he would continue to cooperate with the police.

[50] There can be no question that maintaining the handcuffs in place until the three properly arrested men could be processed was a reasonable and permissible step at that juncture for the reasons expressed by Trotter J.A. in Pillegi. That does not necessarily entail the conclusion that keeping the three detained while lying on their face on the ground was not problematic. However, the issues associated with that state of affairs must be isolated from the issues associated with the justifiable maintaining of handcuffs in place (it must be noted that Mr. Abdikarim was in fact liberated from his handcuffs for a short period of time while he was getting dressed in the master bedroom).

[51] In the case of Mr. Abdikarim, it does not appear that he remained lying on the floor for more than a minute or two after the turn-over from the ETF team to the investigation team.

[52] D.C. Ellis assisted in dealing with Mr. Abdikarim in the bedroom and described him as being upset initially but said that he calmed down as he brought him to his feet and allowed him to sit on the bed while they were getting organized. Their discussion – or at least the phase of the discussion where Mr. Abdikarim was upset - was audible to the others outside.

[53] When D.C. Syed emerged from the master bedroom with a clothed Mr. Abdikarim, the other two detainees were already in the process of being assembled in the hallway outside the unit. I infer from this that Mr. Abdikarim emerged from the master bedroom at or about 5:17 pm and joined the others in the hallway.

[54] It does not therefore appear that Mr. Abdikarim was kept face down on the floor for more than a very brief period of time after the ETF officers turned over control of the premises. That period of time does not appear to have exceeded two or three minutes. I can find nothing in his treatment following his detention until the point that he was led out of the unit that approaches the level of a breach of his s. 8 or s. 9 Charter rights.

[55] It seems possible that Mr. Hussein and Mr. Abdirahman remained in what was doubtless a situation of some discomfort for a somewhat longer period of time. How much longer that situation endured is something that I have only very limited evidence of.

[56] Neither gentleman provided direct evidence at the hearing so I do not have the benefit of their evidence regarding those events. There is only very limited evidence on the record before me as to what was happening with respect to either of these two men between 5:05 pm when the ETF team transferred control of the scene to the investigative team and 5:17 pm when they were gathered together in the hallway outside the unit. None of the officers present at the time were closely questioned on when and in what circumstances the two men in the living room (Mr. Hussein and Mr. Abdirahman) were brought to their feet at the preliminary inquiry.

[57] D.C. Syed testified before me at the hearing of this application in addition to the testimony he gave at the preliminary inquiry. He testified that the men remained on the floor for only a minute or two after he took the SOCO photographs indicating their location. However he also indicated that he did not know whether the other two men were still face down on the floor while he was assisting Mr. Abdikarim to get dressed. D.C. Syed’s testimony does little to dispel the lack of specific evidence as to how long each of the three men were left face down on the floor.

[58] While the evidence does not suggest that the investigative team was seized with a sense of urgency to put the three detained men in a less stressed posture (than lying face down on the floor), it does not suggest that they were acting in a callous or malicious manner either. Mr. Abdikarim was allowed to sit on the bed within a few moments of the situation being secured and the ETF being relieved. The other two men were allowed to sit down in the hallway when they were brought there as they were in that posture when Mr. Abdikarim joined them.

[59] Neither D.C. Ellis nor D.C. Rasmussen had any direct interaction with either of the two men in the living room prior to their being brought into the hallway outside the unit. D.C. Rasmussen’s recollection was that the three men were sitting with their backs to the wall while they were in the hallway outside the unit waiting to be transported. He had no responsibility for them while they were inside the unit and could add little to the evidentiary record. He noted their initial position on the floor when he came into the unit but was asked no detailed questions about their position prior to his dealings with them in the hallway outside. D.C. Ellis was absent from the living room dealing with Mr. Abdikarim for some of the time at least.

[60] Neither Det. Taylor nor D.C. Ellis made any particular mention of moving either gentleman from their face down position prior to moving them out to the hallway at 5:17 pm. On the other hand neither was cross-examined as to why or how long they were left face down either.

[61] The entire subject-matter of this aspect of the application was only lightly touched upon in the examinations of the relevant police officers during the preliminary inquiry. No direct evidence of the applicants was filed for the application and the viva voce testimony adduced before me (D.C. Syed) touched on the subject of the initial conditions of detention only briefly as I have noted.

[62] I cannot conclude on this record that there is any persuasive evidence that either of the two men were deliberately left face down on the floor for an extended period of time. Doubtless they were left for some of the time, but I cannot conclude that it was an unreasonable period of time or that there was any deliberate cruelty or infliction of pain. There is no evidence of any contemporary complaints being voiced by either detainee.

[63] In the circumstances, I cannot conclude that the period of time any of the accused persons spent in handcuffs lying face down was unreasonable, amounted to excessive force or betrayed anything like callous indifference to their well-being, cruelty or anything similar. I find no breach of the s. 8 or s. 9 Charter rights of either Mr. Hussein or Mr. Abdirahman relating to the manner of their arrest and detention has been made out.

[64] Finding no breaches of the s. 8 or s. 9 Charter rights of any of the Applicants arising from described circumstances of their detention, I similarly find no breaches of s. 7 as alleged. The use of force in this case was not excessive or beyond the authorized parameters of s. 25(1) of the Criminal Code. As indicated, there were reasonable grounds to apprehend risk from firearms based on the facts known before entry into the unit. By the time the ETF turned over control, those grounds had morphed into reasonable grounds to arrest each of the three occupants of the unit for possession of a controlled substance and of a firearm. Maintaining control over the arrested individuals by means of handcuffs until they could be processed was a reasonable and necessary use of force in the circumstances: Pileggi.

(c) Delay in informing reason for arrest: s. 10(a) Charter

[65] Section 10(a) of the Charter provides that “[e]veryone has the right on arrest or detention … (a) to be informed promptly of the reasons therefor”. My discussion of the issues arising from manner in which the applicants were informed of the reasons for their arrest shall follow the same outline as the previous section: I shall first review the period of time when the ETF were in control of the unit (4:56 pm until 5:05 pm) and then the period of time when the investigation team was in control until the three were provided with a more detailed statement of the reason for their arrest and their rights to counsel (5:05 pm until 5:17 pm).

[66] Two things regarding the first or ETF time period are clear.

[67] First, the decision to detain everyone found in the unit was made prior to breaching the door and entering the unit. It was confirmed during the tactical briefing at 4:21 pm. That does not mean that circumstances discovered upon entry could not alter that settled plan. The plan agreed upon was a reasonable one in the circumstances. There were reasonable grounds for believing that Mr. Abirahaman and one or more firearms would be present in the unit.

[68] Whether the planned detention of the found-ins is characterized as an “investigative detention” or an arrest subject to further investigation is a distinction without a difference as far as s. 10(a) of the Charter is concerned. The informational obligation does not change.

[69] Second, during the nine minutes it took to breach, enter and secure the premises no member of the ETF team provided any particular information to any of the three accused who were detained in this first phase of the execution of the warrant beyond the general announcements at the beginning of the entry process that they were to get down on the floor and that police were executing a search warrant.

[70] In my view, the information provided by the ETF in this initial phase constituted reasonable and sufficient compliance with s. 10(a) of the Charter in those circumstances and to that point in time.

[71] Those circumstances, it must be recalled, were a very short-term time frame where police were reasonably giving priority to safety both of officers and of occupants by clearing the premises and establishing the absence of threats. The ETF were securing premises for search under a warrant that itself confirmed the existence of reasonable grounds for believing that one of the occupants of the unit possessed one or more firearms.

[72] Section 10(a) does not require the reasons for detention to be provided within “one minute” or “in under five minutes”. The qualifier “promptly” implicitly requires an evaluation having regard to the circumstances present at the time. In those circumstances, and until threats had been cleared or neutralized, the detainees needed to know information sufficient to inform their decision to comply or resist. They learned in the first few moments of the breach that they were dealing with police acting under a warrant to search the premises. That was the information they needed to know in that initial point of contact between police and detainee. This was not a home invasion by rogue criminals. It was police executing a search warrant.

[73] Neither the original basis of arrest or detention nor the sufficiency of the information conveyed has an indefinite shelf life in terms of excusing the failure to fully implement the informational requirements of s. 10. The three occupants would need to be informed of quite a bit more, and soon. However, the limited information initially conveyed was sufficient to that point in time.

[74] Police have a reasonable window to ensure the safety of officers and of the occupants of the unit and to stabilize the scene: R. v. Strachan, 2 S.C.R. 980 at para. 34, R. v. Balatoni, 2003 28191 (Ont. S.C.J.) at para. 16-18, R. v. Katerberg, 2019 ONCA 177 at para. 5. Those very concerns were reasonably paramount at this point in the process of executing the search warrant. I find no breach of s. 10(a) of the Charter can be charged to police during this first phase of the execution of the warrant.

[75] There is no need for me to speculate on how long and under what conditions arrest or detention could be prolonged on the strength of the information contained in the ITO and search warrant alone. Within a minute of less of the entry of the investigation team, Det. Taylor audibly announced that a firearm and a controlled substance had been discovered and instructed D.C. Ellis to arrest the detained occupants of the unit for possession of a firearm and of a controlled substance. That information was announced within a few feet of at least two of the detained individuals – Mr. Hussein and Mr. Abdirahman - and was heard by the three other members of the team who were still entering (or had just entered) the unit. As noted earlier, Det. Taylor had reasonable grounds for reaching the conclusions that he reached and issuing the orders to D.C. Ellis that he issued at that time.

[76] I find that Mr. Hussein and Mr. Abdirahman – lying on the floor in the same area as the other police officers to whom the instructions were being given – heard the announcement and instructions given by Det. Taylor. They provided no evidence on the subject themselves but the evidence of the witnesses at the preliminary inquiry satisfies me that these two applicants could not have failed to hear the same instructions that were heard by D.C. Syed and D.C. Ellis. The language used by Det. Taylor (“guns and coke”) would not have been misunderstood by either of them.

[77] The evidence of what Mr. Abdikarim heard is less clear. Neither of the ETF officers present in the room were asked detailed questions about how the transition from ETF to investigating officers occurred. I conclude that it is unlikely that the two ETF officers in that part of the unit would have simply left Mr. Abdikarim lying on the floor unattended, particularly given his low-grade squirming/resistance as reported by Officer Salermo. D.C. Ellis and D.C. Syed had not yet entered the master bedroom when Det. Taylor announced his discovery and gave them their orders. While it is true that Mr. Abdikariim’s own audible protests after D.C. Ellis came into the room were both audible and distracting in the main part of the unit even over the continual noise and distraction of the fire alarm, I cannot safely reach any conclusions as to what he did or did not hear of Det. Taylor’s announcement and commands. It is certainly possible that he heard the same things that those in the living room heard, but not having any information from the ETF officers that they heard those instructions, I cannot assume that Mr. Abdikarim did.

[78] Is an overheard command given to other police officers sufficient compliance with s. 10(a) of the Charter? The actual command conveyed by Det. Taylor to D.C. Ellis was – in police shorthand – an order that D.C. Ellis provide the detained individuals with the information required by s. 10(a) and (b) of the Charter. It was not intended to fully comply with the informational requirement of s. 10 of the Charter and I do not so interpret it. However, I am also mindful of the comments of the Court of Appeal in R. v. Gonzales, 2017 ONCA 543 where (at para. 125) it was concluded that it is substance and not form that controls whether a breach of s. 10(a) has occurred.

[79] In my view, Mr. Hussein and Mr. Abdirahman understood that they were being arrested for possession of a firearm and a controlled substance. Det. Taylor’s announcement referred to “coke” from which they would clearly have understood that cocaine was the controlled substance they were suspected of possessing. The other firearm and the other controlled substances were discovered later in the search and they were obviously not advised of the charges arising from discoveries not yet made.

[80] That being said, the informal and almost accidental conveyance of this information to them was not intended by Det. Taylor or D.C. Ellis to be “the” s. 10(a) caution and nobody appears to have troubled themselves to inquire whether Mr. Abdikarim had heard what was said (particularly over the din of the fire alarm). At the hearing of this matter, I expressed a considerable degree of frustration that something as basic as informing detained persons of the reason for their detention or arrest under s. 10(a) did not appear to be treated as a priority matter of routine. It was clear to me that the investigation team did not expect the ETF squad to attend to this detail before turning over responsibility for the premises. Their brief was limited and very short-term in nature. The only fair assumption that the in-coming team could make was that the ETF team had not taken it upon themselves to do more than what was worked out in the briefing meeting. That did not include undertaking any arrest formalities. In those circumstances, the lack of a clear and concise explanation for why 12 minutes elapsed between the turnover of responsibility from the ETF team to the time when D.C. Ellis began the task of providing the three arrested men with the information required by s. 10 of the Charter was quite troubling. The only explanation offered was that the situation remained somewhat dynamic and chaotic due to the fire alarm ringing, the inability to arrange for transport of the detained men due to the elevators being out and the distraction of the audible protests being made by Mr. Abdikarim.

[81] I accept that the explanation offered represents an accurate statement of what was going on. The investigation team was there to conduct a search of the condominium unit and that process had not begun beyond Det. Taylor looking into the contents of a very visible bag on the kitchen counter. The SOCO photographing process had just begun but that did not occupy the attention more than a single officer out of the four on the team. Mr. Abdikarim was restless and protesting for a time – that required the attention of D.C. Ellis for a period of time along with D.C. Syed. It did not require any action by either Det. Taylor or D.C. Rasmussen.

[82] It seems to me that the simplest - but not most satisfying – explanation is that D.C. Ellis had been given the job of fulfilling the s. 10 obligations for all three and he wanted to inform all three a single time together and it was taking some time to get Mr. Abdikarim settled, clothed and outside the bedroom. There is no basis to suggest that officer safety or stabilizing the situation continued to operate to prevent full compliance with the s. 10 obligations of police. The ETF had secured the premises and all three men were fully and safely restrained. There was no impediment to doing something so simple as informing three arrested persons why they were under arrest one at a time if D.C. Ellis was preoccupied with Mr. Abdikarim. Det. Taylor or D.C. Rasmussen could have taken the task on vis-à-vis Mr. Hussein and Mr. Abdirahman if need be. The additional expenditure of breath and time would have been trivial. What was lacking was any sense of urgency in discharging what is not a particularly difficult or onerous obligation upon police. This cannot all be ascribed to the “process of ensuring the situation was under control”. It was under control but the pace of attending to so basic an obligation as s. 10 was unacceptably languid.

[83] The fact of the matter is that s. 10(a) requires that the information regarding the reasons for the arrest be conveyed “promptly”. It was conveyed only indirectly to two of the arrested men – who I find “overheard it” – and there is no satisfactory evidence that it was conveyed at all to Mr. Abdikarim at any time during the first twelve minutes after the ETF turned over responsibility. Further, while I have not found a s. 10(a) breach associated with the very limited information conveyed by the ETF during the period of their control of the scene, the time from initial detention does not cease to be a factor. The fact that seven or eight minutes had already elapsed from the time the three men had been placed in handcuffs and detained by the ETF ought to have imparted an added degree of urgency to discharge such a simple and basic obligation as s. 10(a) when the investigation team took over. Clearly this did not happen.

[84] I cannot find that police adequately discharged the very limited obligations imposed upon them by s. 10(a) “promptly” as required. The rights of all three were violated. The severity and consequences of that failure shall be considered below.

(d) Delay in informing of right to counsel: s. 10(b) Charter

[85] The informational component of the obligation to provide rights to counsel in s. 10(b) must be satisfied “without delay”. Having found that the s. 10(a) rights of the three arrested men were violated by the delay in providing the required information prior to 5:17 pm, I find for the same reasons that the s. 10(b) rights of the applicants were also violated and for the same reasons. “Promptly” and “without delay” are phrases which must be assessed in the context of the events in which they occur. There is no reason in logic or common sense to view the informational component of s. 10(a) and s. 10(b) differently. Stated differently, there is no reason why than should not be provided at the same time. It was reasonably possible to do so earlier than 5:17 pm in the case of informing the arrested persons of the reasons for their arrest and it follows that it was also reasonably possible to advise the same persons of their right to retain and instruct counsel before that time.

[86] In this case, the Applicants take issue with the sufficiency of the information provided by D.C. Ellis when he purported to inform the arrested men of theirs. 10(a) and s. 10(b) rights in the hallway outside the unit shortly after 5:17 pm. I cannot agree with those submissions.

[87] Once the men were assembled in the hallway, D.C. Ellis advised the three men about the search warrant that had been issued and why police were authorized to enter and search the premises. He advised them of their arrest for possession of a controlled substance and a firearm. He did not have his memo book with him where he had a copy of the standard police “right to counsel” caution. He did however recite the same information from memory if not verbatim. He told them that they had the right to counsel of their choice and he told them that if they could not afford a lawyer they could be placed in touch with duty counsel once they arrived at the station. Each of the three men confirmed that they understood their rights and expressed the desire to instruct counsel of their choice. The uncontradicted evidence of D.C. Ellis is that he conveyed the substance of the information required to be conveyed by s. 10(b) of the Charter at or shortly after 5:17 pm in the hallway. That compliance – while late – was sufficient when given and was clearly understood. I do not give effect to this aspect of the Applicant’s complaint.

(e) Delay in implementing right to counsel: s. 10(b) Charter

[88] In the course of being informed of the reasons for their arrest and of their right to counsel by D.C. Ellis at 5:17 pm, each of the accused indicated that they wished to speak to a lawyer of their choosing. There can be no question that there was no practical opportunity to facilitate the applicants’ actually contacting their lawyers at that time and place. There was no realistic opportunity for privacy. The search of the unit had not yet been commenced and they were in a public hallway. After being taken down to the ground floor (from the 33rd floor) by the stairs, the three arrested men were turned over to the transport officer at 5:40 pm.

[89] D.C. Priebe was the fifth member of the investigation team. He had been present for the arrest of Mr. Osman (the driver of the Mercedes vehicle). He was also the officer from the investigation team delegated to process the arrests of both Mr. Osman and the three applicants that Det. Taylor was causing to be sent to 42 Division for processing.

[90] D.C. Priebe was at 42 Division handling the parading and booking process of Mr. Osman and providing him with his access to counsel. He finished providing Mr. Osman his access to counsel at approximately 6:43 pm. Meanwhile, the three applicants had been brought to 42 Division in the transport wagon by the transport officer to whom Det. Taylor confided them after bringing them down the stairs at the condominium building.

[91] At 6:45 pm, D.C. Priebe was advised that the three applicants were present at the station in the wagon and awaiting processing. While it is apparent that the three had been waiting in the wagon for a period of time (it being unlikely that the drive could have taken as long as an hour even at that time of day) he was unaware of that fact at the time and was at all events was unable to begin processing and booking them until he had finished facilitating Mr. Osman’s access to counsel which was underway. While there appears to have been some delay in conveying the information to him that his prisoners had arrived at the station – a delay the Crown asked me to ascribe at least in part to the process of adapting police routines to the still new reality of the pandemic – it is also fair to observe that D.C. Priebe was at all events in the process of fulfilling Mr. Osman’s right to consult counsel until just two minutes before he learned of the presence of the applicants.

[92] The next 22 minutes of D.C. Priebe’s time was consumed by inputting the data necessary to parade and book each of the three applicants. This done he proceeded to the room where the parade process was to occur. At this point, D.C. Priebe understood that each of the applicants had been advised of their right to counsel and wished to speak to counsel of their choice. He understood that he would be facilitating their access to counsel that evening.

[93] Mr. Abdikarim was paraded first at 7:10 pm. A Level III search was requested by D.C. Priebe which request was granted. The search was commenced at 7:20 pm and completed at 7:25 pm.

[94] Mr. Abdirahman was the next to be paraded at 7:26 pm. Once again, a Level III search was requested and granted. That search occurred between 7:31 pm and 7:36 pm.

[95] Mr. Hussein was the last to be paraded at 7:43 pm. Once again, permission for a Level III search was requested and granted. The search was conducted between 7:45 pm and 7:49 pm. The parading and booking process of all three applicants, including the Level III searches requested and completed during that process, fully occupied D.C. Priebe’s time and attention from 6:45 pm until 7:50 pm.

[96] At 7:56 pm, D.C. Priebe began the process of facilitating the rights to speak to counsel that each of the three applicants had clearly requested. D.C. Priebe explained that he was operating without any assistance at 42 Division who was not involved in the arrests and it was still the early days of operating under Covid protocols. The three accused were being temporarily housed in three separate rooms in the Fraud section at the station and he had only two phones available for the three of them. Further, the phones were such that incoming calls had to be manually transferred and outgoing calls had to be dialed by him. Covid protocols added further delay as the phones had to be sterilized between each call before handing them to one of the other prisoners.

[97] D.C. Priebe began the process with Mr. Hussein. Mr. Hussein did not know the name or co-ordinates of the lawyer he wished to speak to but asked to speak to Miss Idman who would know the lawyer’s name. He also said that “Jabril” would arrange the call – D.C. Priebe understood this to refer to the accused Mr. Abdirahman. There was thus some uncertainty as to who as between Mr. Abdirahman or Ms. Idman was going to contact the lawyer. At all events, Mr. Hussein was given access to the phone and privacy to speak to Ms. Idman at 7:58 pm and he did so for approximately 30 minutes. At the conclusion of the call, Mr. Hussein did not indicate that he wished to make any further calls but asked only to lie down. D.C. Priebe did not know whether or not Mr. Hussein had spoken to a lawyer during the call that he did make. He knew only that Mr. Hussein did not wish to make any further calls.

[98] As it turns out, a lawyer was contacted on behalf of Mr. Hussein. At 8:59 pm, Mr. Leo Salloum from Mr. Grill’s office called 42 Division intending to ask to speak to Mr. Hussein. He was told he had to speak to the Officer in Charge and was forwarded to that number. When nobody picked up the phone, le left a voicemail with his number.

[99] At about the same time as this first call was being received, the three applicants – each of whom had finished making the calls they wished to make – were being transferred to the holding cells area of 42 Division where they would spend the night before being brought to their show cause hearing the next morning.

[100] Mr. Salloum called again at 9:11 pm. By this time, D.C. Priebe had returned to his desk and Mr. Salloum was put through to him. D.C. Priebe recollection of the call was that he advised that he was unable to put him through to Mr. Hussein because the booking hall was too busy but that he could either call back or someone would call him back later in the evening. There is a minor contradiction between D.C. Priebe’s evidence and the affidavit of Mr. Salloum in that the latter made no mention of being told that he might also call back later instead of simply waiting for a call back. D.C. Priebe maintained his account of what message he delivered when cross-examined on the subject but also agreed that he had no specific note of what he told the lawyer (who he thought was Mr. Grill himself rather than a lawyer from his office) and was relying on what he would have said in the circumstances. D.C. Priebe also explained why the relevance of the booking hall being busy. He said that the keys to the cell area would have to be procured from the booker in the booking hall and they were in the middle of parading another individual which he could not interrupt given Covid protocols. At all events, D.C. Priebe frankly admitted that he was preoccupied with completing the paperwork needed for the show cause hearings the next morning and had been at work since early in the morning. He left for home at approximately 3 am after a very long day and simply forgot to check back with Mr. Grill’s office. He acknowledged that this was a mistake on his part.

[101] To put his mistake in some context, D.C. Priebe did not know whether Mr. Hussein had spoken to a lawyer during the 30 minute call he arranged with Ms. Idnam. It is of course possible that she arranged a three-way call during that thirty minute private call or that she would make arrangements to retain a lawyer for him. He was aware only that Mr. Hussein told him he did not need the phone any longer when his call was done and that he just wanted to lie down. Mr. Hussein did not indicate that he was expecting an incoming call from a lawyer or that he needed or wished to make one himself. When he received the call from Mr. Grill’s office, he interpreted that as being a case of the lawyer wishing to speak to his client – he didn’t know if they had yet spoken or not.

[102] After arranging Mr. Hussein’s phone call, D.C. Priebe next turned to Mr. Abdikarim at 7:59 pm. He asked Mr. Abdikarim for the name of his lawyer and was told that it was Cyd Israel [sic] but he did not know her number but that he (D.C. Priebe) could look it up. Mr. Abdikarim also asked to speak to his girlfriend to obtain the number. He called the girlfriend at the number given to him by Mr. Abdikarim and permitted Mr. Abdikarim to speak to her privately at 8:02 pm, the call finishing at 8:25 pm. Mr. Abdikarim then advised that he wanted to speak to his Ms. Israel but that he still did not have the number. D.C. Priebe looked up her number on-line, reached a “call back” number but at 20:49 succeeded in reaching his lawyer and put him on a private call with her at that time 8:49 pm. The call was finished shortly after 9:00 pm and Mr. Abdikarim had no further requests for use of the phone.

[103] After putting Mr. Abdikarim on the phone, D.C. Priebe turned to Mr. Abdirahman at 8:03 pm. Mr. Abdirahaman said that he would call his cousin Kadija to obtain his lawyer’s name. Mr. Abdirahman was told that both phones were then in use and he would have to wait his turn. At 8:26 pm after Mr. Abdikarim finished his call one of the phones had freed up and D.C. Priebe put Mr. Abdirahman on the phone with his cousin Kadija at the number he was provided. Mr. Abdirahman asked D.C. Priebe to speak to his lawyer who was on the phone. Since D.C. Priebe had only dialed Kadija, Kadija must have called the lawyer herself via a three-way call. D.C. Priebe provided Mr. Abdirahman’s lawyer with the information regarding the charges requested.

[104] The bottom line regarding facilitating access to counsel is that the time from the initial arrest of the three accused (one or two minutes before 5:00 pm) until just a few minutes before 8:00 pm - three hours – went by before the process of actually implementing the right of each of the accused to speak to counsel began. The process of actually contacting counsel took approximately one hour with the exception of the case of Mr. Hussein and the missed call from Mr. Grill’s office.

[105] Three hours is a long time to start the process of putting the arrested applicants in contact with their lawyers. One does not need to spend long reading precedents to find cases where shorter periods of time have been found to amount to a breach of the s. 10(b) rights of the accused. However, the analysis required is contextual.

[106] In my view, the time consumed was lengthy but I find that the explanations for the time taken were reasonable in the context.

[107] I shall examine the time sequentially. The first period of time that passed after their arrest or detention was the seven or eight minutes needed by the ETF to complete the process of clearing and securing the premises for the investigation team. That period of time was both reasonable and necessary.

[108] The next period of time was from 5:05 pm when the investigation team assumed control of the premises until 5:25 pm when the process of moving the accused down to the street level and the waiting transport officer began. While I was critical of the delay in providing the informational component of the s. 10(a) and (b) rights of the accused in the initial twelve minutes of this time frame, it was reasonable from the perspective of implementation of the right to counsel. The search needed to be organized, time needed to be taken to get Mr. Abdikarim dressed, D.C. Ellis needed time to explain the warrant and the s. 10 rights of the accused, to record their names and personal details and to conduct Covid screening.

[109] The next period of time was from 5:25 to 5:40 pm when the accused were escorted down the stairs from the 33rd floor to street level and put in the custody of the transport officer charged with taking them to 42 Division. Once again, I find this time frame to be reasonable and necessary in the circumstances. The elevators were out of service due to the fire alarm and the decision to take the stairs instead of waiting an indeterminate period of time for the elevators to resume service and a free car to be available was a reasonable one in the context.

[110] It is this next period of time that is more problematic. While the applicants suggest in their written argument that the transport wagon arrived at 42 Division at 5:54 pm, I have been unable to find any evidence on the record that this is so. D.C. Priebe was unable to say when it arrived both when he testified before me and at the Preliminary Inquiry. It is not specifically addressed in the Agreed Statement of Facts. I can hesitatingly take a minor amount of judicial notice that traffic in the early days of the pandemic was somewhat lighter than now or before the pandemic and that the North York apartment and the Scarborough address of 42 Division are both a short distance from entrances to the 401 from which I would infer that a travel time much beyond half an hour seems quite improbable absent an accident or other mishap encountered en route. However, I cannot go much beyond that on the evidence and it was a full hour and five minutes between the time the men were turned over to the transport officer until D.C. Priebe was notified of their arrival.

[111] As it turned out, D.C. Priebe was not in a position to begin parading and booking the three applicants until one or two minutes before he learned of their presence. He was just in the process of completing the processing of Mr. Osman who had been arrested earlier in the day with the Mercedes. I shall return to this period of time below.

[112] After D.C. Priebe learned of the presence of the accused at 6:45 pm, the next hour and ten minutes was devoted to processing the parading and booking of the three accused. That process had to be managed by D.C. Priebe as he was the only officer present with knowledge of the circumstances of the arrest. I cannot find that this process could have been accomplished materially faster than it was. D.C. Priebe needed to take a few minutes to enter the data of the persons to be processed into the computer and then to parade each of them separately before the booking sergeant. While the accused take issue with the Level III searches requested (and ordered) here, those added only about five minutes per person to the booking process. Even if D.C. Priebe had multiple assistants with him at this point, he could not have started the process of facilitating the access to counsel of the last of the three (in this case, Mr. Hussein) any sooner than he did.

[113] Finally the process of arranging the calls resulted in the last of the three to make a call (Mr. Abdirahman) having to wait 30 minutes after the parade process was completed before he had access to a phone due to the fact that only two phones were available in the area for the three accused detained in that area.

[114] Leaving aside the case of Mr. Hussein where the Crown has conceded that a s. 10(b) breach occurred by reason of the failure to follow up with Mr. Grill’s office after the call was received by D.C. Priebe, I cannot fault D.C. Priebe for the manner in which he acted once he knew the three accused were at the station and waiting to be processed. He knew and understood that his task was to facilitate access to counsel and he knew that this was an important obligation.

[115] I do not agree with the hindsight-driven suggestions of the applicants that the process might have been speeded up by ensuring that D.C. Priebe had more assistance. This was the early days of the pandemic. The bugs were still being ironed out of the various practices and procedures that were being put in place to cope with it by the police force. Det. Taylor’s team was short-staffed to begin with at the time. They could not know with any certainty in advance how many arrests were going to be made when the warrants were executed. D.C. Priebe had four accused to process (including Mr. Osman) and he had material constraints in terms of a division building that was not his home base. He did start the ball rolling to get the three applicants in front of a phone within a handful of minutes after the booking process was complete. He had two phones at his disposition for three accused persons and had both of them in use within a very short period of time.

[116] Where I do take issue with the Crown’s position and find myself in agreement with the Applicants is with regard to the time between 5:40 pm and 6:45 pm. The Crown has an onus to account for all delay in implementing the right to counsel of the applicants: R. v. Hobeika, 2020 ONCA 750 at para. 71-73. It is not for me as the judge hearing the application to attempt to determine what happened during that 65 minute period – it is for the Crown to explain it. There was clearly some delay between the time the wagon arrived at 42 Division and the time when the parade and booking process began. Whether that time was five minutes or fifty, there was a delay and the onus was on the Crown to explain it. The Crown failed to lead enough evidence for me to quantify the delay with any reasonable precision, a factor that leads me to infer that the truth of the matter lies closer to fifty minutes than five. While I have not been generally critical of the diligence or good faith of D.C. Priebe in terms of the speed and efficiency with which he acted once he knew they were there (leaving aside forgetting to put Mr. Hussein on the phone with his lawyer), that does not mean that I must accept unchallenged the suggestion that he could not have processed the applicants any sooner even if he had been notified of their arrival earlier. There is no adequate explanation why the parade process could not have started earlier if D.C. Priebe had become aware of the presence of the accused earlier. While it is true that he was completing paperwork associated with Mr. Osman and waiting for Mr. Osman to finish his call with counsel, I find it hard to credit that he could not have arranged for someone at the Division to undertake that task – a task that required no particular background on the case.

[117] In my view, the Crown has failed to discharge its onus of explaining all of the delay arising from this sixty-five minute period. Some portion of it was certainly the unavoidable time necessary to drive from point A to point B, but not all of it.

[118] In conclusion I find that Mr. Hussein’s s. 10(b) rights were violated when D.C. Priebe failed to follow up and connect him with his lawyer within a reasonable time frame after the 9: 13 pm call I also find that the s. 10(b) rights of all of the applicants were violated by reason of the failure of the Crown adequately to account for the delay occasioned by leaving the applicants in the transport wagon awaiting processing for a period of time that may have been thirty minutes or longer. I shall consider the consequences of these breaches below.

(f) Level III search: s. 8 Charter

[119] As noted, D.C. Priebe requested permission from the booking sergeant to perform Level III searches on the three applicants during the parading and booking process. A Level III search is sometimes referred to as a “strip search” but this type of search is a far cry from the popular conception of a strip search. A Level III search is not a cavity search which is of course far more intrusive upon the dignity and privacy of the person subject to the search.

[120] In the present case, the Level III searches were conducted in a room that was private. Although counsel suggested that the door to the search room was left open during the searches, there is no evidence that this was so. D.C. Priebe was confident that he would have closed the door in the ordinary course even if he did not claim to have a memory of that particular detail of the search.

[121] There were two male police officers present for the search of each of the applicants (also males) which took place in a room off the booking hall. There was no video camera in the room nor any windows through which anyone might have disturbed the privacy of the person being searched. The subject of the search was requested to remove each item of clothing one at a time. Each such item of clothing was thoroughly searched and then returned to the subject to put back on. The subject was asked to pick up his own scrotum to verify nothing was hidden beneath there and, from the other direction asked to lean forward slightly to verify nothing was secreted there. At no time would the subject be fully naked in the search room. The searches of each applicant generally took no more than about five minutes.

[122] The applicants’ position is that the Level III searches were conducted in this case as a matter of routine and without considering the individual circumstances of the case. D.C. Priebe’s stated reason for requesting the Level III searches was simply because the arrest involved narcotics and firearms. This blanket justification was particularly inappropriate in the case of Mr. Abdikarim who had been initially detained while wearing only his boxers and an undershirt, suggesting little opportunity to have hidden anything on his person thereafter while handcuffed or under the eyes of police. As well, the applicants suggest that there was no valid reason why the searches could not have been deferred until after the three accused had been provided an opportunity to speak with counsel. The Applicants point to concerns expressed in the Independent Police Review Director’s March 2019 report – more than a year prior to these arrests – that racialized individuals may be singled out for such searches in a disproportionate manner although race-based records are not kept by Toronto Police.

[123] The leading case on this subject is that of the Supreme Court of Canada in R. v. Golden, 2001 SCC 83. Golden established three criteria that must be present before a search, including a strip search, incident to arrest may be considered lawful: (i) the arrest itself must be lawful, (ii) the search must be incident to the arrest and (iii) it must be conducted in a reasonable manner. The reasonableness of the manner of the search should be considered against the eleven criteria endorsed by the majority of the Court (see para. 101).

[124] In the present case, the arrests were validly made based upon reasonable and probable grounds that were discovered prior to any of the breaches occurring. The searches were conducted incident to the arrest. The procedure followed in this case closely tracked the eleven recommendations adopted in Golden. The search was conducted at the station, it was conducted in a manner that safeguarded the health and safety of all, it was authorized by a supervising officer, it was conducted by officers of the same gender, the number of officers involved (two) was the reasonably necessary, minimal force was used, it was carried out in a private area, performed quickly, involved no physical contact with the genital area of the subject and the reasons for the search were recorded.

[125] There were valid safety reasons and preservation of evidence reasons for requesting a Level III search in this case. The validity of those reasons at the time the decision to conduct the search was made is not diminished by subsequent changes in police policy that have considerably tightened the criterial for authorizing Level III searches. The charges involved narcotics and weapons both of which pose a serious potential danger if introduced into the general prisoner population at a detention centre. The three accused were to be held overnight in single cells at the Division but were expected to be transferred shortly thereafter to a detention centre. While in a perfect world, Mr. Abdikarim’s circumstances (of having been apprehended in his underwear), if known, might have tilted the balance against a Level III search in his case, that information was not known and thus could not be acted upon. The circumstances that were known, however, raised reasonable concerns of safety and preservation of evidence.

[126] This was not a case like R. v. Rover, 2018 ONCA 745 where the search was conducted as a matter of routine because a warrant to search for drugs at a location associated with the accused had been requested. In the present case, the accused were apprehended in a condominium unit where a firearm and a substantial quantity of cocaine were effectively sitting in plain sight on a counter (even if inside an open shopping bag).

[127] I find that the timing of the Level III searches – prior to granting access to counsel – is not in and of itself a breach of the Charter rights of the applicants. The time and place for conducting such searches – particularly in the early days of the pandemic when distancing protocols were still developing – was during the booking process. The examination room was off the booking hall to which access was restricted because of the pandemic. Taking the applicants through the booking process and then deferring to a later time the Level III search would have made no sense whatsoever. The whole point of the search was safety-related. If any of the applicants had been secreting a weapon or narcotics, and there was a rational basis for fearing they might, leaving them alone and with hands free in a consultation room posed obvious safety and preservation of evidence concerns.

[128] I find that the Level III search conducted in this case was reasonably conducted as a search incident to a lawful arrest and was undertaken in a reasonable manner in response to reasonable concerns as to officer safety and preservation of evidence.

(g) Lost evidence/Failure to preserve evidence allegations: s. 7 and s. 11(d) Charter

[129] The applicants charge the police with unacceptable negligence for failing to preserve evidence from the CCTV cameras in the condominium building. This evidence, they suggest, would have been “highly relevant” and integral to the ability of the Applicants to make full answer and defense to this case.

[130] I do not propose to review the evidence led on this topic in fine detail because I think the premise of the challenge simply does not fit the facts.

[131] The allegedly “lost” evidence in this case was not “lost” at all. It was never in the possession of police. This is not a case where police viewed obviously relevant evidence, knew of its existence and relevance and were in constructive possession of it. Police saw some video which they obtained copies of and requested other video as a matter of routine due diligence. Building management appeared to be willing to cooperate but despite several attempts at follow-up the video was not copied and made available to police. There is no basis other than speculation to assert that the missing video evidence is or would have been of critical importance.

[132] In summary, while preparing the Information to Obtain for the search warrant, D.C. Syed viewed and obtained copies of certain stored CCTV images from the elevator going from the parking garage to the 33rd floor of the condominium building associated with the magnetic fob issued to the subject unit on the day the ITO was sworn. Among the images viewed was one which police believed – in error – portrayed Mr. Abdirahman.

[133] D.C. Syed requested as a matter of routine further video clips associated with the same key fob going back four or five days. He originally made the requests in person prior to and on the day of the execution of the search warrant. He followed up on his requests via text messages with the security office and some phone calls over the next couple of weeks. The clips requested were in relation to the fob usage report that the security office had generated and provided to police. Some video clips were picked up as late as June 7 and possibly as late as June 11. After June 11, D.C. Syed was on vacation for six or seven days and then was assigned to work on another matter that consumed his full attention after that. He did not make a note of chasing down the videos requested any further although he believes may have done some. He said that he was waiting for a call from the security office that the videos were ready for pickup which never came.

[134] What is absent from these facts is:

a. Any evidence that police had actually viewed the “missing” video evidence and were aware of its relevance; and

b. Any evidence that the evidence was actually prepared by the owner of the video evidence (i.e. the building management) but police failed to collect it when ready.

[135] I do not accept the applicants’ submission that the “missing” evidence was highly probative or clearly necessary to enable them to make full answer and defence. It was suggested that the video evidence “might” show someone entering with the building with the Walmart bag in which the gun and cocaine were found. Or it might not. There were numerous entrances to the building and not every entrance to the building would necessarily be associated with the use of the key fob. The Walmart bag might have been brought into the unit on an entirely different occasion and the contraband handgun and cocaine transferred into it as a handy container inside the unit. The possibilities and permutations are endless. Guns can be concealed in a pocket, a gym bag or almost anything. A brick of cocaine could also have come into the unit in just about anything. The comings and goings of the three occupants of the unit at the time the warrant was executed may have been recorded on some of the requested videos or they may not.

[136] This case bears no resemblance to the case of R. v. Downes, 2022 ONSC 4308. In Downes the police officer’s evidence regarding the relevant video was expressly disbelieved by the trial judge in a case where there was a single highly probative fact that there was very good reason to believe should have been recorded by a known video source. D.C. Syed was simply following up as a matter of due diligence and had no particular reason to expect that the video evidence he was seeking was probative or not. It may have been which is why he asked for it.

[137] I find that the Crown has not lost any material evidence through unacceptable negligence or otherwise. This aspect of the Application must fail.

(h) Remedies: 24(1) and 24(2) Charter

[138] I have found that the applicants’ rights under s. 10(a) and s. 10(b) were violated in the manner and to the extent that I have described. There was delay in fulfilling the information component of s. 10(a) and s. 10(b) and there was delay in implementing access to counsel under s. 10(b). Mr. Hussein was alone the victim of a further breach of his s. 10(b) rights when D.C. Priebe neglected to place him in touch with his counsel after such counsel called the station.

[139] The applicants suggest that a stay of proceedings under s. 24(1) or an exclusion of the evidence unearthed during the search of the condominium unit pursuant to s. 24(2) would be the appropriate remedies to apply in this case. While there are of course significant differences between these two remedies, the effect of both on the cases before me is essentially identical. The cases against the applicants would be at an effective end.

[140] The nature of Charter rights is such that every breach of the rights vouchsafed by the Charter is a serious matter. These are after all an expression of the core, bedrock values upon which our collective society is intended to be based. Nevertheless, a qualitative assessment of the gravity of the breaches in question must be undertaken.

[141] The Supreme Court of Canada summarized the manner in which s. 24(1) of the Charter should be applied in cases where a stay of proceedings is sought in R. v. Babos, 2014 SCC 16, [2014] 1 SCR 309. In Babos the Court found that a stay of proceedings is only warranted in the clearest of cases where the conduct in question compromises the very fairness of the trial of the accused, or which risks undermining the integrity of the judicial process.

[142] In my view, the breaches found in this case do not approach the required standard on either ground.

[143] I have found that there were unjustified delays in providing the accused with information that was required to be provided to them regarding the reasons for their arrest and their right to legal advice and there were delays in providing them with access to that legal advice. While unjustified, it cannot be said that the consequence of any of these failings has had any material impact on the upcoming trial of any of the applicants. The delays were relatively brief in duration and did not result in any statements being given or have any causal connection to any material evidence being found.

[144] I cannot find that the delays in question were of such a systemic nature as to represent a risk that permitting the trial to go forward in this case would amount to a license to continue to violate the rights of others in a similar fashion in future. There were extenuating circumstances that acted in combination here. The search squad was understaffed, D.C. Ellis became distracted for a period of time by dealing with Mr. Hussein who was expressing a degree of protest as well as needing to be clothed in a fit manner to be taken to the station, access to the booking hall was restricted by the pandemic, etc.

[145] As regards s. 24(2) and the request to exclude the evidence obtained during the search of the condominium unit, I recognize that the Court of Appeal’s interpretation of “obtained in a manner” in s. 24(2) in R. v. Pino, 2016 ONCA 389 requires me to consider s. 24(2) where there is a temporal and not necessily a causal connection between the infringing conduct and the evidence. Nevertheless, the analysis must be conducted in light of the three-part test from R. v. Grant 2009 SCC 32 by considering (i) the seriousness of the Charter-infringing conduct, (ii) the impact on the Charter-protected interests of the accused; and (iii) Society’s interest in an adjudication on the merits.

[146] In the present case, and for many of the same reasons expressed in relation to s. 24(1), I find that the analysis does not favour the exclusion of evidence remedy sought.

[147] The s. 10(a) breaches were relatively technical and short term in nature. The substance of the s. 10(a) right was provided to Mr. Hussein and Mr. Abdirahman within their earshot even if not directed at them. They knew that a gun and some cocaine had been discovered a few feet away from where they were lying. They knew their initial detention had been based on a search warrant for a handgun and now they knew that a handgun and suspected cocaine had been found and they were to be charged by D.C. Ellis (to whom the instructions were being given) with possession of those things. The s. 10(a) breach in their case was technical. It is not clear that Mr. Abdikarim overheard the same instructions heard by the other two applicants. However the person charged with carrying out the instruction to arrest him and explaining his rights to counsel – D.C. Ellis – had his hands full in dealing with Mr. Abdikarim for a material portion of the delay that ensued whether dealing with his protests about his treatment by the ETF officers or in arranging (along with D.C. Syed) to retrieve his clothing and removing his handcuffs to allow him to get dressed.

[148] The s. 10(b) implementation delays were certainly of a more serious nature. While more serious, I would nevertheless characterize the breaches as moderate in nature when considered in light of all of the circumstances. The seriousness of these breaches cannot however be limited to the thirty or so minutes of delay in the transport wagon (or the overnight delay in the case of Mr. Hussein). The apparently unnecessary but in all events inadequately explained delay in transit extended the degree of all of the other delays in implementing this basic right, however necessary or reasonable the other delays may have been when considered in isolation. Where a fundamental right of this nature has been subject to unavoidable delay, there ought to have been additional urgency shown in ensuring that no more delay occurred or limiting that delay as far as practicable.

[149] Against this I must weigh in the balance the one-off or non-systemic nature of the unjustified delay that I have charged to the state’s ledger.

[150] I have noted some of the compensating factors that explain if they do not justify the failure to have connected Mr. Hussein with his lawyer after the call was received from the lawyer. These include the fact that Mr. Hussein might well have been connected with his lawyer through a three-way call during the thirty minutes he did spend on the phone and the fact that he asked to lie down without giving any indication that more was expected or desired in the way of telephone access that night. D.C. Preibe was at that point more than fourteen hours into a 21 hour shift and his oversight cannot be attributed to malice or bad faith. Overall I have found that D.C. Priebe was acting diligently and in good faith in attempting to implement the applicants’ rights to counsel even if he dropped the ball on this occasion.

[151] In the case of the delay in transit from the condominium to the booking hall, the issues encountered also appeared to me to arise from a combination of circumstances some of which were pandemic-related rather than from a systemic failing at risk of being perpetuated. There is no suggestion that the failing in that case was the result of bad faith or a callous disregard of the applicants’ rights.

[152] The impact upon the applicants of the failures was also comparatively minor in nature. None of the applicants saw fit to provide any direct evidence of prejudice to them. There is no suggestion that any statements relevant to a matter at issue in the trial were elicited by reason of the informational or implementation delays. Had there been any such statements, it would be that evidence rather than the fruits of a validly issued and executed search warrant that would be under consideration for exclusion.

[153] Finally, Pino notwithstanding, there is no logical connection between the breaches and the evidence sought to be excluded that can be shown. The police searched the premises under a valid warrant issued without connection to the breaches that occurred subsequent to the execution of the warrant. Those breaches in no way contributed to the items already present on the premises being found.

[154] I would not grant a remedy under s. 24(1) or s. 24(2) for the Charter violations I have found occurred in this case. Of course written reasons can be published (as these shall be) and indications of future similar breaches may result in a future judge reaching a different conclusion about how systemic or one-off the breaches found here may be if others choose to perpetuate bad practices.

Disposition

[155] For the foregoing reasons, I conclude that the Application must succeed in part as follows:

a. I find that the s. 10(a) and s. 10(b) rights of the applicants were violated by reason of the failure of police to inform the accused of the reasons for their arrest and of their right to counsel between 5:05 pm and 5:17 pm when there was time and a reasonable opportunity to do so;

b. I find that the s. 10(b) rights of all of the applicants by reason of the unexplained delay in commencing the processing of the accused at 42 Division and that the s. 10(b) rights of Mr. Hussein were further violated by reason of the failure of D.C. Priebe to have arranged to connect Mr. Hussein with his lawyer as soon as practicable after his lawyer phoned and requested to do so at or about 9:13 pm;

c. I also find that the remedy of a stay of proceedings under s. 24(1) of the Charter is inappropriate having regard to the lack of any impact arising from the breaches upon the fairness of the applicants’ trial and the lack of any strong systemic element to the breaches found;

d. While the broad reading of “obtained in a manner” in s. 24(2) adopted by the Court of Appeal in Pino and other cases would permit me to exclude evidence obtained during the search of the premises both before and after the breaches I have found, I do not find that this is a case where I ought to do so having undertaken the Grant analysis; and

e. The application is otherwise dismissed.

[156] Orders accordingly.

REVISED September 6, 2022 S.F. Dunphy J.

[^1]: These reasons were released on August 12, 20122 subject to review by me for clerical errors and/or stylistic but non-substantive corrections. That review has now been completed and these revised reasons have been released to the parties and for publication on September 6, 2022.