COURT FILE NO.: CR-22-70000641-0000 DATE: 20230302
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – MUHAMMAD HASSAN Defendant
Counsel: Morgan Gries, for the Crown Catherine Szpulak, for the Defendant
HEARD: January 3 to 10, 2023
JUSTICE S. NAKATSURU
[1] Some good policing happened in this case. The police were involved in a proactive policing project called “Kronos 2” to combat serious crime in a troubled Toronto neighborhood. The officers involved observed some activity at a small neighborhood park late at night that piqued their interest. Based on some astute hunches, they thought up a plan. To use a well-known idiom to describe that plan, the police “shook the tree to see what would fall out.” What fell out were firearms, loaded firearm magazines, and cocaine.
[2] Unfortunately, there was also some bad policing. The bad resulted in several violations of Mr. Hassan’s constitutional rights. I have decided that the remedy must be the exclusion of this evidence at his trial. Here are the reasons why.
A. The Charter Claims
[3] Mr. Hassan submits:
a. That D.C. Jimenez did not have reasonable and probable grounds to arrest him for possession of a firearm. Thus, this arbitrary arrest violated s. 9 of the Charter.
b. That the s. 8 guarantee under the Charter to be secure from unreasonable search and seizure was violated in a number of ways: (i) since the arrest was unlawful, the search of Mr. Hassan’s satchel was unreasonable; (ii) the strip search at the police station was unreasonable as the arrest was unlawful and the police improperly conducted it; and (iii) the search warrant for the RAV4, where a small amount of cocaine was found, could not have issued.
c. That the s. 10(b) right to counsel was violated in two ways: (i) the police failed to implement his right to counsel by unreasonably delaying an opportunity to consult counsel for three and half hours; and (ii) when he was afforded an opportunity to consult counsel, Mr. Hassan was not given privacy.
d. That s. 7 of the Charter was violated as the booking video of Mr. Hassan’s parade at 53 Division was lost, destroyed, or never created in the first place.
e. That the appropriate remedy is a stay of proceedings. Alternatively, the evidence of the firearm, loaded magazines, rental car key, and cocaine should be excluded from evidence under s. 24(2) of the Charter.
[4] I will deal with the issues roughly in the order they are alleged to have occurred.
B. Section 9: Arbitrary Arrest
[5] Exercising his police power under s. 495(1)(a) of the Criminal Code, D.C. Jimenez arrested Mr. Hassan for possession of a firearm. Mr. Hassan submits that the officer lacked the reasonable and probable grounds required for the arrest. The Crown submits that he did.
[6] An arrest not authorized by law is arbitrary and violates s. 9 of the Charter: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 54; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 20. For a lawful arrest, the police officer must have both subjective and objective reasonable and probable grounds that a person has committed or is about to commit an indictable offence. The grounds must be subjectively held in the sense of an honestly held belief. Additionally, that belief must be reasonable, determined on the objective standard of a reasonable person standing in the shoes of the officer: R. v. Storrey, [1990] 1 S.C.R. 241, at para. 17; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 62-63.
[7] Nothing more than reasonable and probable grounds is required for a lawful arrest. This is a lesser standard than a balance of probabilities or a prima facie case. But it is more than a mere suspicion or possibility; the test is met when credibly based probability replaces suspicion: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 37; R. v. Muller, 2014 ONCA 780, 122 O.R. (3d) 721, at para. 33.
[8] All the circumstances must be considered when assessing whether objective reasonable and probable grounds for the arrest existed including the training, knowledge, and experience of the officer and the dynamics of the situation in which the officer acted: R. v. Latimer, [1997] 1 S.C.R. 217, at para. 26; R. v. Desilva, 2022 ONCA 879, at para. 60. Facts known to the officer at the time of arrest should not be considered within individual silos. Rather, they should be considered as a whole in the assessment: R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 29.
[9] Determining whether sufficient grounds exist to justify the arrest calls for the application of common sense, flexibility, and practical everyday experience: MacKenzie, at para. 73.
[10] The information that was available to D.C. Jimenez at the time he arrested Mr. Hassan included his observations made earlier that night, his experience and training, and the dynamic and fluid circumstances confronting him at the time. While I also heard from the officer’s partner that night, D.C. Laptiste, it is what D.C. Jimenez saw and believed which is central. He was the one who formed the grounds for and effected the arrest of Mr. Hassan.
[11] The following are my main factual findings on this issue.
1. A Summary of the Evidence Regarding the Grounds for the Arrest
[12] On August 10, 2019, at 8 p.m., D.C. Jimenez and D.C. Laptiste began patrolling the Thorncliffe Park area in an unmarked minivan as a part of Project Kronos 2, a proactive police project to increase community safety by responding to increased levels of violent crime and drug-trafficking in the Thorncliffe Park area. Part of its focus was on the illegal activities of the Thorncliffe Park Kings (TPK), a group that the police viewed to be a street gang.
[13] After completing a couple of earlier unrelated police investigations, at 11:04 p.m., D.C. Jimenez and D.C. Laptiste decided to drive to Leonard Linton Park. Earlier that summer, D.C. Jimenez had been involved in the investigation of two persons who were sleeping in a car by the park. A pellet gun, drugs, and drug paraphernalia were discovered, and charges were laid. As the officers drove on Research Road, which runs on the southern border of the park, D.C. Jimenez saw a row of cars parked by the park. The cars appeared unoccupied. One car, a black Mercedes, was parked facing the wrong way. As they drove by the southwest footpath into the park, D.C. Jimenez saw three figures standing in the darkness between the jungle gym and the basketball court. He could not make out any details of these figures. D.C. Laptiste parked their van on Research Road to observe the park.
[14] At 11:08 p.m., they saw a car stop near the Mercedes. Due to the glare of its headlights, the officers could only see that a person came from the park, stood next to the car for a short time, and then returned to the park. The car left. Though he could not see any hand-to-hand transaction, D.C. Jimenez testified that drug trafficking came to his mind, especially given that one goal of Project Kronos 2 was to reduce drug trafficking. At 11:13 p.m., when another car stopped again near the Mercedes, the officers drove eastbound and obtained the plates of all the parked vehicles. The entire time spent observing the park was about nine minutes. D.C. Jimenez agreed in cross examination that none of what he saw suggested criminality, but nonetheless, in his view, further investigation was warranted.
[15] The officers radioed for assistance from uniformed scout cars. At about 11:30 p.m., the plainclothes officers met with two uniformed scout cars at a nearby Home Depot. D.C. Jimenez learned through police checks that the Mercedes was associated with a man who was on bail for drug trafficking and was a person listed as a gang target in Project Kronos 2. They also received information that the car was a vehicle of interest in a shooting in May of 2019. The other cars were rental vehicles. D.C. Jimenez testified that in his experience, rental cars were sometimes used by drug traffickers or other persons involved in illegal activities. All of this strengthened his curiosity about what was happening in the park.
[16] D.C. Jimenez believed that a uniformed patrol through the park should be conducted. The uniformed officers would do a foot patrol in the park to see what was happening and to engage whoever was there. This plan fit the proactive nature of their project. None of the uniformed officers were directed to arrest or charge anyone. They discussed a potential bylaw infraction investigation that the uniformed officers could resort to if they chose to, since D.C. Jimenez believed that city parks were to close at 11 p.m. [1] The plan was that the uniformed police officers would enter the park from the south, while D.C. Jimenez and D.C. Laptiste would patrol on the northside of the park, on Vanderhoof Avenue.
[17] P.C. Demore, P.C. Casasola, and P.C. Paola arrived at the park at 11:38 p.m. The last radio transmission from the uniformed officers was that they were approaching the park. When they entered the park, they found about 15 racialized males at the basketball court, some playing basketball, some just hanging. P.C. Casasola engaged them with basketball talk. D.C. Jimenez and D.C. Laptiste were totally unaware of where the officers were at this time, who they encountered, and what those people were doing.
[18] At about 11:43 p.m., as their van travelled east on Vanderhoof Avenue, D.C. Jimenez and D.C. Laptiste saw two males running quickly on a foot path out of the park. D.C. Jimenez believed that they were running from the uniformed police officers. He testified that, at that point, he believed he had enough grounds for the investigative detention of these two males. D.C. Laptiste did a U-turn and headed westbound to get closer to the males. The males were no longer running but were walking quickly towards a nearby intersection. D.C. Jimenez testified that they got within ten metres of the two males. Mr. Hassan was walking a little ahead of the other male, who was later identified as Haaris Khan. Mr. Hassan was carrying a black fabric satchel. D.C. Jimenez testified that Mr. Hassan turned around, looked at their van, and dropped the satchel. D.C. Jimenez testified that he heard it make a “metallic thudding” sound as if metal pieces were hitting each other. When that happened, D.C. Jimenez testified that he believed there was a firearm in the satchel. For him, it went from having grounds for an investigative detention to a belief there were guns in the satchel due to the metallic sound.
[19] The officers exited the car and screamed “police.” D.C. Jimenez testified that Mr. Hassan had gone about five to ten metres from the bag. He ordered Mr. Hassan to get to the ground and he complied. D.C. Jimenez touched him and placed him under arrest for possession of a firearm. D.C. Jimenez could not cuff Mr. Hassan as he had no handcuffs with him, but Mr. Hassan was compliant with his order to stay down. The officer walked back to the satchel and searched it. He found a firearm in one compartment of the bag and two loaded magazines in another compartment. D.C. Jimenez walked back and arrested Mr. Hassan again for possession of a firearm.
[20] At the time of the arrest, D.C. Jimenez did not recognize the man he arrested to be Mr. Hassan. Thus, any knowledge that the officer had that a Mr. Hassan was seen in the neighborhood in a rental vehicle earlier that night, had outstanding drug trafficking charges, or was involved in the TPK, did not form any part of the grounds he had to arrest Mr. Hassan.
[21] D.C. Jimenez testified that he has had experience with that type of metallic sound having been involved with firearms since he was a young adult. Moreover, he had been in the reserve military for five years and he had his experience with firearms while with the Toronto Police Service. He testified that in his experience, guns were often stored in satchels. Finally, in his mind, people who are running from police often are trying to separate themselves from an illegal item.
2. The “Metallic Thud” When the Satchel was Dropped
[22] I do not accept that D.C. Jimenez heard a heavy “metallic thud” when the satchel was dropped. I find the officer was not candid. While D.C. Laptiste confirmed that he too heard the sound, his testimony was even less believable. Let me expand on the reasons for this conclusion.
[23] First, it defies belief that such a sound would emanate from the dropped satchel. I have viewed the photos of the satchel. It appears to be made of fabric padded to a degree. The firearm is in the main compartment. Two magazines are in a front compartment, separate from the firearm. The dimensions appear tight. The satchel was just dropped, not thrown by Mr. Hassan, and thus did not land with force or at a distance. And it landed on soft grass and not a hard surface like concrete. In my view, it is highly unlikely that the contents of the bag would have made any sound at all when dropped.
[24] Second, the surrounding circumstances made it implausible that D.C. Jimenez could hear the metallic sound. I recognize that D.C. Laptiste testified that his driver’s side window was open. Both officers also testified that police radio was not receiving calls, nor was the air conditioning on. However, the officers were at least a wide lane of traffic away from where the two males were walking. D.C. Jimenez estimated ten metres, but they were likely farther. The road noise made by the moving van the officers were in would also have interfered with their ability to hear. It was not as if Mr. Hassan dropped the satchel with the officers standing right next to him.
[25] Third, even if some sound was made when the satchel fell to the ground, regardless of D.C. Jimenez’s experience with guns, no amount of experience or human auditory acumen could have permitted D.C. Jimenez to discern that a “metallic” sound (which I do not accept he heard) was from a firearm in the bag. I appreciate if the two magazines struck each other, some metallic clink or click might have been made, even if it was muffled by the fabric. But this is far different from the sound described by the officers. Moreover, such a sound could not reasonably have led anyone to believe a firearm or magazines were the items making that sound.
[26] Fourth, D.C. Jimenez’ belief that the satchel held a gun is inconsistent with his actions in allowing Mr. Hassan to remain lying unsecured on the ground when he went to look in the satchel. Mr. Hassan was not handcuffed. [2] D.C. Jimenez did not conduct even a pat down search of Mr. Hassan before he went to look at the bag. Mr. Hassan was not within reach of D.C. Jimenez. No other officer was in the immediate vicinity. D.C. Laptiste had run off after Mr. Khan, who had fled. Despite these circumstances, D.C. Jimenez did not pull out his firearm to cover Mr. Hassan, something he admitted was a mistake. In sum, if D.C. Jimenez truly believed that there was a firearm in the satchel because of the metallic sound, he would not have left Mr. Hassan in such an unsecured position to go search the satchel’s contents, where his attention would be distracted away from Mr. Hassan while he searched the bag. This officer was experienced, conscious of officer and public safety, and working on a project devoted to combatting serious violent crime. If D.C. Jimenez truly heard the sound of a gun or had anything more than a feeling that the bag could have held contraband, the take-down scenario as it played out would not have happened.
[27] The Crown strongly relies on D.C. Laptiste’s evidence. D.C. Laptiste testified that he too heard the metallic sound when the satchel was dropped. Normally, this would be strong confirmation of D.C. Jimenez’s testimony. I find that it is not. Fundamentally, that is because D.C. Laptiste’s testimony on this was patently unbelievable.
[28] When first questioned, D.C. Laptiste testified that he heard a heavy metallic sound as if the contents of the bag were metallic and a bit of plastic. It sounded to him like a magazine and a gun hitting the ground. Respectfully, it was absurd to me that in these circumstances, he could delineate the sound as gun magazines and a gun. I have little doubt he described it in this fashion because a gun and magazines were later found in the satchel.
[29] Then, when asked why he believed it was a magazine and a gun, he pointed to his experience during a gun amnesty. He would collect guns, often in bags. He also pointed to his experience as a police officer who, during re-qualifying for his police issued firearm, might drop magazines to the floor. He testified that to him, the magazines make such distinctive sounds that he could tell if they were empty or half empty. I have no doubt that D.C. Laptiste has familiarity with firearms and may have dropped some firearms or magazines in the past. But to go from that to his posture in the witness box that he can distinguish those sounds from other metallic sounds is not credible. Moreover, then to contend that from those limited and very different past experiences, he was able to determine that the sound that night was from a firearm and a magazine in a satchel dropped on soft grass is patently unbelievable. From the substance of his evidence and the stance he took in the witness box, which was at many points argumentative, he was so clearly overselling the sound he allegedly heard that I just cannot accept his testimony that he did.
[30] While the test for an arrest requires me to consider the experience and training of the officers, this does not mean any testimony allegedly based upon that experience and training should receive a free pass when it comes to the fact-finding process.
[31] I further point out that D.C. Laptiste only subjected Mr. Khan to investigative detention. While there is room for the exercise of judgment in deciding whether to detain or arrest, if D.C. Laptiste truly believed there were guns and magazines in the satchel, he likely would have arrested Mr. Khan. While this observation does not bear directly on the grounds D.C. Jimenez purported to have, it is nonetheless somewhat telling when it comes to D.C. Laptiste’s credibility regarding the sound he claims to have heard: R. v. Brown, 2012 ONCA 225, 286 C.C.C. (3d) 481, at para. 16
[32] Given my view of their credibility, the fact that both officers now testify they heard a metallic sound provides me with little assurance that such a sound was made when the satchel was dropped, since they both had plenty of opportunity to consult, collude, or contaminate their recollections, both at the scene and at the station, including at the debriefing. On the evidence I have heard, collusion or contamination are distinct possibilities, and this significantly weakens the force of D.C. Laptiste’s testimony purporting to corroborate D.C. Jimenez’s testimony.
[33] The demeanour of witnesses should play little role in credibility assessments. However, I will say that both officers appeared mightily uncomfortable and nervous in cross-examination when this topic was canvassed. Frankly, they were unconvincing.
[34] What motive could D.C. Jimenez have to make up the sound if he did not hear it? The answer is to justify an arrest that he realized could not be justified on the true situation.
[35] In conclusion, I find that D.C. Jimenez made up hearing the metallic sound in to support the grounds for Mr. Hassan’s arrest. Even on his own testimony, until the satchel was dropped and the sound was heard, he felt he only had grounds for an investigative detention.
3. Analysis
[36] The Crown concedes that based on D.C. Jimenez’s testimony, the metallic sound was critical, since it changed what were up until then only grounds for an investigative detention to grounds for an arrest. Thus, my finding that the officer did not hear such a sound has significant ramifications.
[37] Given my credibility finding regarding D.C. Jimenez’s testimony, I do not accept that D.C. Jimenez had an honest belief that he had reasonable and probable grounds to arrest Mr. Hassan. In other words, the subjective test required for a lawful arrest is not met.
[38] Additionally, on an objective assessment, using common-sense and viewing the circumstances as a whole and not in a piece-meal fashion, reasonable and probable grounds were lacking. The totality of the circumstances up until Mr. Hassan’s arrest provided only reasonable suspicion.
[39] The park itself lay outside the geographic boundaries of Project Kronos 2. It cannot be said that the park was notorious for criminal activity. D.C. Jimenez was only aware of the one incident that occurred earlier in the summer. An arrest that was removed in time from August 10, and which shared little similarity to what they were investigating that night.
[40] The observations made by the officers about the park, until they saw the males running, were mainly innocuous. Cars being parked on the road by the park was not unusual, even if the cars were rental vehicles. Regardless of whether the park was “closed” according to the bylaw or not, three figures in the park at that time of night was not unusual. The Mercedes being parked the wrong way was unusual and reasonably attracted their attention, but no one attended this vehicle. The information that a TPK member was associated with the vehicle and was before the courts reasonably would increase D.C. Jimenez’s suspicion about it. However, I am not sure D.C. Jimenez really knew that this person was a TPK member at the time, given he did not mention this at the preliminary inquiry, it is not in his notes, and he did not inform the Crown of his knowledge. His explanation that he felt uncomfortable about speaking about gang information did not make much sense. In any event, he did not know the particulars of this person’s association to the vehicle or its recency. The information later provided by Detective Olsen that it was a vehicle of interest in a shooting was just that; D.C. Jimenez did not know exactly what that meant. The observations of two vehicles attending the park, again, were suspicious, but that is all. While the interaction between the person from the park and the first vehicle was short, consistent with a drug transaction according to D.C. Jimenez, objectively viewed, it provided little information; someone could have just as easily been greeting a familiar face they came upon in the park. Nothing was seen exchanged. The second vehicle just stopped. Looking at all of this, there is no objective basis to reasonably suspect there was some criminal activity taking place in the park.
[41] Mr. Hassan and Mr. Khan running from the park was suspicious. However, it was an assumption that they were running from the uniformed officers. An assumption based only on context and a temporal correlation. But these factors provided scant support for this conclusion.
[42] The full context must also include the fact the police were not investigating any particular crime. Thus, these males were not running from a location where a crime had been committed. Moreover, while it was late, it was not so late that it would be unusual to find people in the park. This park contained a basketball court and a skate park. It is not unusual that young persons would use the facilities offered by the park at that time on a warm summer night. This turned out to be the case when the uniformed officers entered the park. Lastly, the park had at least two footpaths crossing it to join two streets. It would not be strange to expect people using the footpaths to take a short cut between the streets. Noteworthy, the two males did not keep running, nor did they take a route that would allow them to better conceal themselves; for example, they did not go into the townhouse and condo complex north of the park.
[43] The temporal correlation between the running and the uniformed officers entering the park exists, but D.C. Jimenez and D.C. Laptiste did not know exactly when the officers entered the park, who they approached, and what the circumstances were of any encounter.
[44] Looking at the totality of the circumstances, it amounted to just a hunch that the two males were running from the police. It is entirely possible that the males were running for other reasons. For example, given there was a bus stop at the intersection the males were running towards, they could have been running to catch transit. As another example, when D.C. Laptiste first saw them, he did not rule out the possibility they were joggers. The point is not that D.C. Jimenez had to rule out innocent possibilities, but rather that there was a lack of objective facts to base anything more than intuitions on.
[45] Of course, the totality of the circumstances included the dropping of the satchel. The defence concedes that at that point, investigative detention was warranted. At the time Mr. Hassan dropped the bag, the unmarked van was not side by side with the two males. D.C. Jimenez testified that they were slightly back. However, they had not yet announced they were police officers. D.C. Laptiste testified that Mr. Hassan’s dropping of the bag was not done surreptitiously, as if he wanted to discard it. Clearly, the dropping of the satchel is suspicious conduct, but even looked at in the totality of the circumstances, it does not elevate D.C. Jimenez’s belief to a credibly based probability that the satchel had a firearm in it. I conclude this fully recognizing that the arrest took place without the luxury of time to critically assess the events that were occurring: R. v. Golub, (1997) 117 C.C.C. (3d) 193 (Ont. C.A.) at para. 18.
[46] That D.C. Jimenez had reasonable grounds to detain Mr. Hassan for investigative purposes does not buttress any lawful basis for his detention. As Doherty J.A. stated in R. v Stevenson, 2014 ONCA 842, 317 C.C.C. (3d) 385, at para. 56:
Whatever lawful police power, apart from the arrest power, the police may have had to detain the appellant, they did not purport to exercise any such power. The police arrested the appellant. The police conduct at and after the gunpoint encounter with the appellant, is only consistent with a full arrest. The arbitrariness of the appellant's detention must be determined having regard to the police power actually exercised and not by reference to some other police power which may have been, but was not, exercised; [citations omitted]
[47] In my view, at best, D.C. Jimenez had a suspicious situation unfolding in front of him that merited an investigative detention and further police investigation. But his resort to arresting Mr. Hassan for the possession of a firearm was without a reasonable factual foundation and overzealous. Even allowing for the dynamic and fluid situation that was occurring and the officer’s past training and experience, the arrest was based only on intuition — though one that later turned out to be accurate: MacKenzie, at para. 64; R. v. Beaver, 2022 SCC 54, at para. 72.
[48] A final comment on this Charter breach. The Crown argued that the context of Project Kronos 2 should be considered as a part of the totality of the circumstances. In other words, the proactive nature of the police project, given its laudable goal of community safety by reducing violence, drug trafficking, and illicit gang activity, should inform the objective assessment of the observations made by D.C. Jimenez.
[49] I cannot agree with this submission. There is no question that proactive policing has its benefits. In the words of Tulloch C.J.O. in the Report of the Independent Street Checks Review (Toronto, Queen’s Printer for Ontario, 2018), at p. 40, paras 32-33:
[A] proactive program that prevents crime from happening in the first place is better than a reactive program that helps solve crimes after they have occurred.
The benefits of proactive over reactive policing continue to be recognized, as long as proactive policing does not collide with individual rights.
[50] Despite these benefits, permitting an officer any greater leeway in their formation of reasonable and probable grounds for an arrest because they are involved in a proactive police program can only lead to negative consequences. It can open up certain communities or neighbourhoods to a different standard of policing, whereby the police can more readily exercise their arrest or detention powers. This can justifiably be criticized as discriminatory. Moreover, it can encourage a form of tunnel vision. If a proactive policing project is focused on looking for certain crimes, the danger is that all sorts of innocent behaviour will begin to look illegal or suspicious. The proactive program would improperly colour the lens through which the police view the world. Like a carpenter, if the tool you have is a hammer, everything begins to look like a nail.
[51] I am under no misapprehension that good policing is often based on intuition and “gut feeling” and that my perspective will make fighting crime harder for the police. I will just leave this point by quoting the words of Doherty J.A. that some things, sometimes, are worth as much, if not more, than physical security:
The balance struck between common law police powers and individual liberties puts a premium on individual freedom and makes crime prevention and peacekeeping more difficult for the police. In some situations, the requirement that there must be a real risk of imminent harm before the police can interfere with individual rights will leave the police powerless to prevent crime. The efficacy of laws controlling the relationship between the police and the individual is not, however, measured only from the perspective of crime control and public safety. We want to be safe, but we need to be free. [3]
C. Section 8: Search Incident to Arrest
[52] The Crown relies upon the doctrine of search incident to arrest to justify the warrantless search of the satchel: R. v. Stairs, 2022 SCC 11, 412 C.C.C. (3d) 283, at para. 6.
[53] As the arrest by D.C. Jimenez was unlawful, it cannot provide any justification for the search: R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518, at para. 37. As well, the arrest cannot be converted into an investigative detention for the purpose of determining the constitutionality of the search: Stevenson, at para. 59.
[54] Therefore, the search of the satchel violated Mr. Hassan’s s. 8 rights under the Charter. [4]
D. Section 8: Unlawful Strip Search
[55] Mr. Hassan was subjected to a level 3 or a strip search at 53 Division. As a strip search is only authorized incidental to a lawful arrest, having found this arrest to be unlawful, the level 3 search was also a violation of Mr. Hassan’s s. 8 right to be free from unreasonable search and seizure: R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 91.
[56] Mr. Hassan goes further though and argues that even if there had been a lawful arrest, the level 3 search was not justified in the circumstances of the case and the manner of the search was unreasonable, since no proper record was kept of it.
[57] I disagree with both arguments.
[58] This search was not conducted as a matter of routine. Sgt. Granberg, the officer-in-charge of 53 Division who authorized the level 3 search of Mr. Hassan, testified it was not. It was done for the safety of others in the station and for evidence purposes. Mr. Hassan was found to be in possession of a gun. The officers who had custody of him believed that other weapons could be found on him, and they did not feel safe without a strip search. While I would have thought that, given the fact Mr. Hassan was charged with a firearm offence and likely would have been held for show cause, his co-mingling in the prison population would also have been a consideration, Sgt. Granberg testified that that the decision whether to release Mr. Hassan or to hold him for a bail hearing had not yet been made at the time of the strip search. Thus, it was not a factor.
[59] D.C. Jimenez could recall the reasons why he requested the strip search. He testified that the reasons for the request were that Mr. Hassan was before the courts for trafficking in drugs, he had run from the police, and he could have concealed items on him such as weapons or evidence. He requested a strip search so Mr. Hassan would not have anything on him to cause harm to himself or anyone else.
[60] In my view, the specific circumstances — the possession of a dangerous loaded firearm and ammunition in the satchel, as well the fact he was on release for drug trafficking charges — provided sufficient reasonable and probable grounds for a strip search to be conducted at the station: Golden, at para. 112.
[61] Regarding the failure to keep a proper record, I find that a sufficient record was kept of the level 3 search. The fact that a strip search was conducted was noted. While the reasons for the request and the authorization were not noted, as Sgt. Granberg testified, this is explained by the fact that all of this would have been recorded on the video taken during the booking parade.
[62] While a good record of a strip search is important, at least to deter any improper conduct, and even though better notes could have been made, I am persuaded that the Crown has proven that this strip search, except for it not being incident to a lawful arrest, was compliant with s. 8: R. v. Atule, 2018 ONSC 5416, at paras. 48-51. The adequacy of the record required for a strip search will depend on the context of the strip search. Greater notation of the reasons for, and how, a strip search is conducted is necessary for a strip search done in the field than for a strip search in a police station under the supervision of the officer-in-charge of the station during a booking process that is supposed to be video recorded. As such, the record in this case is sufficient.
E. Section 10(b): Violation of the Right to Counsel
[63] Mr. Hassan submits that the implementational component of his s. 10(b) right to counsel was violated in two ways: (i) there was an unreasonable delay in facilitating his access to counsel, and (ii) no privacy was afforded to him when he exercised his right to counsel.
1. Unreasonable Delay in Facilitating Access to Counsel
[64] The implementational duty on the police under s. 10(b) to provide access to a lawyer arises immediately upon the detainee's request to speak to counsel. The police are therefore under a constitutional obligation to help the detainee access a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24.
[65] Specific circumstances, including concerns for police safety, public safety, or the preservation of evidence, may justify some delay in providing a detainee access to counsel. Such concerns though must be case-specific. The police may delay access to counsel only after turning their mind to the specific circumstances and concluding, on some reasonable basis, that police or public safety or the need to preserve evidence justifies the delay. Even if such circumstances exist, the police must take reasonable steps to minimize the delay: R. v. Rover, 2018 ONCA 745, 366 C.C.C. (3d) 103, at paras. 26-27.
[66] In this case, at 11:51 p.m. while detained in the back of the cruiser, in response to his right to counsel being read to him, Mr. Hassan advised P.C. Demore that he wished to speak to a lawyer. At 3:17 a.m., while in the cell block area of 53 Division, Mr. Hassan spoke to duty counsel. This was a delay of nearly three and a half hours that the Crown bears the burden of justifying.
[67] In my opinion, although things could have been conducted more quickly and efficiently, the Crown has discharged this burden once Mr. Hassan arrived at the sally port of 53 Division. The following delays were reasonable in the specific circumstances of the case: (1) the delay caused at the sally port waiting for another detainee who was being booked ahead of Mr. Hassan; (2) the delays caused by Mr. Hassan’s booking and the strip search; (3) the delay caused by having to obtain phone numbers of counsel from Mr. Hassan’s sister; and (4) the delay caused by calls being made to two different counsel of choice and the lawyers not returning the calls. P.C. Demore ultimately called duty counsel at 3:17 a.m. for Mr. Hassan.
[68] That said, the delay at the scene of his arrest was unreasonable and cannot be justified. P.C. Demore and D.C. Jimenez did not begin the transport of Mr. Hassan to 53 Division until 12:27 a.m. This was some 36 minutes after Mr. Hassan asked to speak to a lawyer. P.C. Demore, who was a junior officer on scene, waited for D.C. Jimenez to accompany him before taking Mr. Hassan to 53 Division. According to both officers, this was for officer safety reasons, as they felt it preferable that two officers escort Mr. Hassan. While I am not convinced that two officers were required to transport Mr. Hassan, I will not second guess this decision made from officer safety concerns.
[69] Accepting that, Mr. Hassan submits that the implementational duty was not reasonably discharged because (a) they should have offered him the use of a cellphone while in the cruiser, or (b) another officer should have been sent with P.C. Demore to transport Mr. Hassan.
[70] I do not accept the first submission. Both D.C. Jimenez and P.C. Demore were of the view that they would be unable to afford privacy to Mr. Hassan in the back of the cruiser. While I appreciate that D.C. Jimenez testified that the practice at 53 Division has changed since 2019, where today, officers are issued work cellphones and would allow detainees to call from the back of the cruiser with a warning of limited privacy, if access to counsel is delayed, the fact remains that, in 2019, 53 Division officers did not have work issued cellphones. Furthermore, the Supreme Court has noted that police are “under no legal duty to provide their own cell phone to a detained individual”: Taylor, at para. 27. This fact, along with the privacy concerns raised by the officers, made the decision not to allow Mr. Hassan the chance to exercise his right to counsel while he was seated in the back of the cruiser, reasonable: R. v. Pileggi, 2021 ONCA 4, 398 C.C.C. (3d) 274, at para. 71; R. v. Burnett, 2021 ONCA 856, 159 O.R. (3d) 321, at para. 139.
[71] However, the second submission has merit. D.C. Jimenez took it upon himself as the senior officer on scene to delegate tasks to other officers as the police continued to investigate the park and those within in it. While this was reasonable, I see no reason why D.C. Laptiste could not have been sent to accompany P.C. Demore with Mr. Hassan to the police station. P.C. Paola and Casasola did transport Mr. Khan. Other police officers, including a supervising sergeant, arrived shortly after to help with the other duties in the park. There was no urgent or exigent situation such that an officer could not have been spared to help P.C. Demore to transport the accused. D.C. Jimenez agreed that the officers he sent to canvass for surveillance videos in the neighbourhood could have accompanied Mr. Hassan. Furthermore, it is noteworthy that D.C. Jimenez regretted the delay in the implementation of Mr. Hassan’s right to counsel and admitted that it should have been handled differently.
[72] In my view, based upon the testimony of D.C. Jimenez, the facts are distinguishable from the case of R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, at paras. 64–67, relied upon by the Crown, where it was held that the delay did not commence at the time of the arrest, but later at the station once lessened safety concerns permitted the call to counsel. Here, D.C. Jimenez did not suspend the right to counsel out of safety concerns. There were no concerns over public or police safety or the preservation of evidence to justify a delay in implementing the right to counsel: Rover, at para. 26. Rather, I find that D.C. Jimenez, nor any other officer, made the implementation of Mr. Hassan’s right to counsel a priority, and thus failed in their duty: R. v. Desilva, 2022 ONCA 879, at paras. 83-87. Simply put, no one bothered to send a second officer with P.C. Demore to transport Mr. Hassan because D.C. Jimenez decided to accompany Mr. Hassan himself at a time convenient to him. D.C. Jimenez did not turn his mind to the specific circumstances of the case to assess whether there was a reasonable basis to delay his right to counsel: Rover, at para. 33.
[73] I appreciate that the resulting delay, in the grand scheme of things, was not that long and the police held off from eliciting any evidence from Mr. Hassan. However, that is something that is more properly considered when it comes to remedy.
2. The Failure to Provide Privacy
[74] The Crown concedes this violation of s. 10(b). Plainly, Mr. Hassan was not afforded privacy when he spoke to duty counsel in the cells of the booking area of 53 Division. Despite the concession, further elaboration of the evidence is required, since I find that there is a disturbing systemic quality to this violation.
[75] During the initial attempts to call counsel for Mr. Hassan, it was anticipated that Mr. Hassan would speak to counsel in one of the interview rooms of the Criminal Investigation Bureau (CIB) office of Major Crimes at 53 Division. In the interview room, privacy could be afforded. When no calls were received back from counsel of choice, P.C. Demore took Mr. Hassan to the cell area because the cell area was monitored. That was the practice that existed at the time in 2019. At some point, D.C. Ngo asked P.C. Demore to facilitate a call to duty counsel. Duty counsel was called at 3:17 a.m. Duty Counsel picked up the call. P.C. Demore testified that he asked the officer-in-charge of the booking area what to do and was told to take the phone in the booking hall, which had a long extension cord, and to pass it to Mr. Hassan in his cell. He did and P.C. Demore left the area. P.C. Demore testified it was a busy night and that there were other prisoners in the cell area. He agreed that Mr. Hassan’s call with duty counsel would be overheard by the other prisoners.
[76] At 53 Division, there are four cells in the cell block adjacent to the booking area. There is brick wall between the cells but the cell door to each cell is only barred and thus open to view. It is for that reason that detainees are offered privacy shields if they wish to use the toilet in the cell. There are also cameras facing each cell that are monitored by the bookers.
[77] P.C. Nakhuda was the booker at 53 Division on August 10. He is familiar with how things work in the booking area and cells. He testified that, in 2019, the practice in the station was that if lawyer calls could not be facilitated in the interview room of the CIB, once the prisoner is moved, lawyer calls were facilitated in the cell block area.
[78] P.C. Nakhuda further testified that the detainee, at times, may be taken to a cell with a solid door adjacent to the main cell area if the cell block is busy with other prisoners. He testified that if there is a sole prisoner, or two prisoners, in the main cell block area but not in the same cell, the lawyer call would be facilitated in the cell block area.
[79] In Mr. Hassan’s case, there were three other prisoners in the cell area.
[80] The Crown concession was inevitable given this evidence. Mr. Hassan did not get the required privacy. In R. v. Playford (1987), 40 C.C.C. (3d) 142 (Ont. C.A.), Goodman J.A., in the early days of the Charter, expounded at length on the reasons why privacy was important and summed it up in this way:
“[i]t would defy common sense to expect an accused person to instruct counsel properly when his instructions can be overheard by other persons and in particular by police officers. Such lack of privacy might even seriously prejudice his ability to retain counsel. Retention of counsel usually requires some explanation by the accused of the circumstances which led to his arrest.
[81] Even in the best-case scenario at 53 Division, prisoners in the cell area may not get privacy. With two prisoners in this area, conversations with a lawyer can still be overheard. Equally problematic is that anyone speaking with their lawyer will be intimidated by the fact that the door to their cell is open while others could be present. A less conducive environment to get full legal advice can scarcely be imagined. Moreover, there is a camera staring the detainee in the face. While P.C. Nakuda testified that the cameras do not record audio, it is unlikely that the detainee would know that, especially given the standard warning given to anyone entering the booking hall that areas of the police station are recorded. Given this, a detainee, even if left alone in the cell block area, would reasonably fear that they are not able to retain and instruct counsel in privacy. This situation too would lead to a violation of s 10(b): R. v. Cairns (2004), 182 O.A.C. 181 (C.A.), at para. 10.
[82] Since it is commonplace that lawyers, including duty counsel, cannot always be immediately reached for legal advice, I can readily infer that other detainees have had to attempt exercise their right to counsel in this totally unacceptable setting without privacy. Additionally, given how Mr. Hassan was treated, I do not accept that the booking officers were always as careful as P.C. Nakuda testified they were when other prisoners were in the cell block.
[83] I cannot see any reason except inconvenience and bother why, when a call from a lawyer comes to a detainee who is in the cell area, they are not removed and taken somewhere, like back to the interview room at the CIB, to field the call.
[84] The systemic nature of the problem is confirmed by the fact that 53 Division has, within the last couple of years, constructed a sound-proof phone booth in the booking area to remedy this situation. All lawyer calls are now handled in the phone booth and are not being done elsewhere anymore.
F. Section 8: The Garofoli Application for the Search of the RAV4
[85] A search warrant to search the RAV4 that had been parked on the southside of Leonard Linton Park was issued on August 13, 2019, to search for evidence related to firearm offences. D.C. Jimenez was the affiant of the Information to Obtain (ITO) for the warrant. When the search warrant was executed, a small amount of cocaine was found in the center console of the car. Mr. Hassan challenges the search warrant.
[86] Search warrants are presumed to be valid. The test on the judicial review of a warrant is not whether the reviewing justice would have issued the warrant, but whether the issuing justice could have done so: R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51. The test is, on the totality of the circumstances, “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued”: Araujo, at para. 54; Morelli, at para. 40.
[87] Mr. Hassan brought a sub-facial challenge to the search warrant. Leave to cross-examine D.C. Jimenez was granted. As a result, I must determine whether the record before the issuing justice did not accurately reflect what the affiant knew or ought to have known, and that if they had, the search warrant could not have issued: Araujo, at paras. 50-54; World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at para. 120. Sub-facial attacks do not expand the scope of the review: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 38.
[88] The ITO essentially tracks the observations made by D.C. Jimenez and D.C. Laptiste on the evening of August 10, has some background information, including that Mr. Hassan was on outstanding trafficking charges, and outlines the discovery of the three firearms: in the satchel, on Mr. Khan, and in the eastern part of the park found later that night.
[89] In this case, given the position of the parties, the Garafoli analysis can be truncated.
[90] First, I must first excise from the ITO the information obtained because of the ss. 9 and 8 violations: R. v. Kokesch, [1990] 3 S.C.R. 3; R. v. Shah, 2023 ONCA 103 at para. 4; R. v. Bhogal, 2020 ONSC 7327, at paras. 104-111. Thus, the constitutionally tainted references to the finding of the handgun and the magazines in the satchel, the keys to the RAV4, and the cellphones on Mr. Hassan’s person, must be excised.
[91] Second, I agree with the Crown that the information in paragraph 36 of the ITO should be amplified. It should not be excised, as the finding of the third handgun in the east side of the park remains accurate. What is omitted from the ITO is the exact location of gun found by the K9 unit, which was in the part of the park removed from the area where Mr. Hassan and Mr. Khan were seen running. Since this information hinders the reasonable and probable grounds for the search warrant, it should be added: R. v. Booth, 2019 ONCA 970, 386 C.C.C. (3d) 281, at paras. 57-59.
[92] Third, the Crown concedes that paragraph 39 of the ITO should be excised in its entirety. This paragraph states that D.C. Jimenez believed that there were further firearms and ammunition in the RAV4, based upon information that Mr. Hassan used the RAV4 to transport firearms to the park, that Mr. Hassan was seen near the vehicle near the entrance to the park, and that Mr. Hassan was seen going to and from the RAV4. All of this was false. This was critical information. It directly connects firearms to the car. I have no doubt that the issuing justice of the peace would have been seriously misled by the information.
[93] All that said, I find that D.C. Jimenez did not deliberately mislead the issuing justice in drafting paragraph 39. In cross-examination, he acknowledged his mistakes. He attributed it to a poor choice of wording when what he wanted to convey were his beliefs and not his observations or information received. After hearing the cross-examination of D.C. Jimenez, I am unable to conclude he phrased the paragraph the way he did with any malicious intent. However, his drafting was unacceptably negligent. Anyone reading the paragraph would believe the officer was conveying information and not belief. This error was fundamental and obvious. Any officer, let alone an experienced one like D.C. Jimenez, would have caught the mistake. Furthermore, even accepting he was trying to convey his beliefs, these beliefs were nothing more than speculation on his part. In sum, D.C. Jimenez ought to have known at the time the ITO was sworn that the information he outlined in this paragraph was simply not true: World Bank Group, at paras. 121-123; R. v. Pires and Lising, 2005 SCC 66, [2006] 3 S.C.R. 343, at para. 41.
[94] After excision and amplification, what is left is Mr. Hassan’s outstanding charges, Mr. Hassan running and dropping a satchel, other firearms being located on Mr. Khan and in the park, and the rental company advising that a “Muhammad Hassan” [5] had rented the RAV4 which was parked adjacent to Leonard Linton Park. This is not enough. I find that based on the corrected ITO, there no longer remains a reasonable basis upon which the authorizing justice, acting judicially, could find reasonable grounds to believe that evidence of a firearm offence would be found in the RAV4: R. v. Phan, 2020 ONCA 298, 387 C.C.C. (3d) 383, at para. 53. Therefore the search of the RAV4 was a violation of Mr. Hassan’s s. 8 right.
G. Section 7: The Lost Booking Video
[95] As noted above, there is no video of the booking of Mr. Hassan at 53 Division. No explanation could be provided for the missing booking video. Rightfully, the Crown concedes a violation of s. 7.
[96] However, that is not the end of the matter. Whether a remedy should be granted and, if so, what that remedy should be, turns on the prejudice to full answer and defence caused by the breach. It does not suffice to establish simply that the missing evidence might help the defence. In determining the degree of prejudice caused by the lost evidence, all the other evidence available to the defence to fill the gap should be considered: R. v. Atwima, 2022 ONCA 268, 161 O.R. (3d) 481, at paras. 101-103.
[97] I am of the view that no prejudice has been established by Mr. Hassan. The only relevance the booking video has at this trial was regarding the constitutionality of the strip search conducted at 53 Division. On this issue, alternative probative evidence about the reasons for the strip search exists, namely, the testimony of the officers involved. It sufficiently fills the gap created by the missing booking video. It is speculative to suggest the video could have assisted in the cross-examination of these witnesses. Indeed, as I pointed out in submissions, as opposed to prejudicing the defence, the non-existence of the video assisted Mr. Hassan in his s. 8 challenge to the strip search on the issue of the police failure to adequately record the strip search process.
[98] Thus, like the conclusion in Atwima, at paras. 106-109, no remedy is required for this breach. See also R. v. Hersi, 2019 ONCA 94, 373 C.C.C. (3d) 229, at paras. 36-39.
H. A Stay of Proceedings
[99] Mr. Hassan submits that a stay of proceedings should be granted as a remedy for the Charter violations.
[100] Looking at all the violations cumulatively, I find that Mr. Hassan has not met the high test for a stay: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 32. This is not the clearest of cases calling for a stay and, as I will explain, the exclusion of evidence is the appropriate remedy in this case.
I. Section 24(2): The Exclusion of the Evidence
[101] Under s. 24(2), evidence obtained in breach of the Charter is excluded if its admission could, in all the circumstances, bring the administration of justice into disrepute. The focus of the inquiry is on the long-term impact of the admission of the evidence on the repute of the justice system: Grant, at paras. 67-70.
[102] The test requires consideration of three lines on inquiry:
- The seriousness of the Charter-infringing state conduct;
- The impact of the breach on the Charter-protected interests of the accused; and
- Society’s interest in the adjudication of the case on its merits.
1. Obtained in a Manner
[103] The gateway question on all s. 24(2) applications is whether the evidence sought to be excluded was "obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter": R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 56; Pileggi, at para. 101.
[104] The parties agree that the evidence of the firearm, magazines, and rental car key were obtained in a manner that infringed ss. 9, 8, and 10(b). However, the Crown submits that the cocaine in the car was only obtained through the s. 8 violation resulting from the improperly issued search warrant and not the other Charter violations.
[105] A generous approach is to be taken when it comes to the s. 24(2) requirement that evidence be “obtained in a manner” that breached the accused’s Charter rights. This approach involves the inquiry of whether there is a causal, temporal, or contextual connection between the evidence and the breach: R. v. Tim, 2022 SCC 12, 412 C.C.C. (3d) 147, at paras. 78, 80. R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at paras. 19: Beaver, at para. 94.
[106] Causal, temporal, or contextual connections must be real ones. Connections that are too "remote" or too "tenuous" in nature do not meet the test: Tim, at para. 78; Wittwer, at para. 21; Beaver, at paras. 95-96.
[107] I agree with the Crown that the cocaine was not obtained in a manner that violated s. 10(b). The search warrant was issued three days after the violations of Mr. Hassan’s right to counsel. These s. 10(b) violations did not constitutionally taint the search of the RAV4: R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350, at para. 77; R. v. Boutros, 2018 ONCA 375, 361 C.C.C. (3d) 240, at paras. 24-25.
[108] The same cannot be said about the s. 9 violation or the other s. 8 violations. Those breaches were integral to the investigative process that led to the obtaining of the cocaine through the information that flowed into the ITO. Moreover, D.C. Jimenez, who made the arbitrary arrest, was the affiant for the search warrant for the vehicle. In this way, a strong contextual if not causal connection exists between the Charter violations and the search of the vehicle that resulted in the seizure of cocaine: Boutros, at paras. 20-23.
[109] As I go through the three prong Grant test, I will not parse out the various violations in relation to the different evidence sought to be excluded. This is because all the violations are relevant in considering whether the evidence, be it the firearm, magazines, or cocaine, should be excluded. As Doherty J.A. stated at para. 26 of Boutros, after finding in that case, like in this case, that the s. 10(b) violations had no connection to the production order seizing text messages:
In holding that the initial s. 10(b) breaches did not trigger s. 24(2), I do not suggest that those breaches are irrelevant to the admissibility of evidence found to have been obtained in a manner that violated a Charter right. If s. 24(2) is engaged, the conduct of the police throughout their investigation and even throughout the prosecution, including the initial s. 10(b) violations, are germane to the admissibility inquiry required under s. 24(2): see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 26.
2. Seriousness of the Charter-infringing Conduct
[110] The seriousness of state misconduct resulting in the Charter breach will fall along a continuum of blameworthiness ranging from a deliberate breach through various levels of negligence to a breach committed in good faith and reasonably. Neither negligence nor wilful blindness by the police can properly be characterized as good faith. A significant departure from the standard of conduct expected of police officers will favour exclusion: Grant, at paras. 72-75; Taylor, at para. 39.
[111] I must situate the police conduct on the scale of blameworthiness. The more blameworthy the conduct, the stronger the argument for excluding the evidence: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 43; Grant, at paras. 72-75. The more severe or deliberate the misconduct, the greater the need for courts to disassociate themselves from it by excluding the evidence.
[112] In this case, collectively and individually, the Charter-infringing conduct of the police was most grave.
[113] The s. 9 violation was very serious. I fully appreciate that D.C. Jimenez had the right to detain and investigate Mr. Hassan. But his decision to arrest Mr. Hassan was flagrant and precipitous. This flagrant disregard of Mr. Hassan’s rights amounts to bad faith. Of course, his hunch turned out to be right. But I cannot assess the seriousness of his conduct with that kind of hindsight. Hindsight is unfailingly acute but irrelevant. So, at the time of the arrest, D.C. Jimenez arrested Mr. Hassan based on nothing more than mere suspicion that something nefarious might be taking place. No urgency or exigency existed to mitigate or excuse that conduct. What makes it so much worse is the officer’s conduct in fabricating a metallic sound to justify that arrest. Without grounds or an honest belief, the officer charged ahead with an arrest demonstrating a significant disregard for Mr. Hassan’s right to be free from arbitrary detention: Brown, at para. 22-26; Tim, at paras. 85-87.
[114] The legality of the searches of Mr. Hassan and the satchel, as well as the strip search at the police station, hinged on the valid arrest. Undercutting the basis of these searches infects them and renders the violations serious.
[115] The arbitrary arrest and the unlawful search incident to arrest also impacted the search of the RAV4. In the ITO, D.C. Jimenez repeated that a “loud metal like sound was heard as the satchel hit the floor”. But even apart from this, D.C. Jimenez was unacceptably negligent in drafting other material parts of the ITO. He ought to have known that his claims that the police had information directly connecting Mr. Hassan, the RAV4, and the firearms, was misleading. His excuse that it was just poor drafting is not acceptable. He was aware of the clear and well-established rules governing the duty of an affiant to make full, fair, and frank disclosure. It is not a close call to conclude that D.C. Jimenez failed to fulfill this duty.
[116] Dealing with the breaches to right to counsel, I find the delay in implementing his right to counsel was serious, as counsel is a lifeline and any unreasonable delay in facilitating that right is serious: Rover, at paras. 44-47; R. v. Noel, 2019 ONCA 860, at paras. 31-37. See also R. v. Lafrance, 2022 SCC 32, 416 C.C.C. (3d) 183, at para. 97. That acknowledged, the seriousness is significantly mitigated by the breach not being deliberate, the delay being short, no incriminating evidence was sought from Mr. Hassan, and once at the station, the police made considerable efforts to contact his counsel of choice. If this violation stood alone, it would not make a compelling case for the exclusion of the evidence.
[117] The same cannot be said about the second breach of Mr. Hassan’s right to counsel. First, it was flagrant. P.C. Demore knew that right to counsel had to be exercised in privacy and that this privacy could not be afforded to Mr. Hassan in the cell area. Second, there is a systemic quality to the breach. The practices and the lack of facility to contact counsel in private at 53 Division at the time leads me to find that this breach of privacy was not an isolated occurrence. It seems to have been tolerated, if not sanctioned, by those with greater authority at the police station or even higher up. The fact that resources were finally expended to solve the problem indicates to me that the police were aware of the systemic nature of the problem but only relatively recently addressed it. Both factors make this breach extremely serious.
[118] The multiple breaches aggravate the police misconduct. D.C. Jimenez was responsible for several of them. It is fair to characterize the breaches as a pattern of Charter violations that makes the Charter-infringing police misconduct even more serious.
[119] Finally, the gravity of the Charter violations is compounded by the dishonest testimony on this application: Pino, at para. 102.
[120] I find that there is an overwhelming need for the court to disassociate itself from the egregious police misconduct. Public confidence in the rule of law and its due processes would be shaken given the seriousness of the violations. Thus, the first line of inquiry pulls very strongly for exclusion.
3. Impact on the Charter-protected Interests
[121] The second inquiry requires an assessment of the extent to which the Charter-protected interests were compromised by the Charter violations. The more negative the impact, the stronger the case for exclusion: Grant, at paras. 76-78.
[122] Section 9 protects the liberty interests of the individual. In terms of the impact of the Charter violation on Mr. Hassan’s Charter protected interests, this is mitigated by the fact that there were reasonable grounds to detain him: Tim, at para. 92. However, Mr. Hassan’s liberty interest was impacted beyond a momentary investigative detention. It was significantly affected by being compelled go to the ground, handcuffed, and led away to the police station, away from the freedom that he had enjoyed: Stevenson, at paras. 70-71; Brown, at paras. 27-28.
[123] This breach led to further illegal invasions of his privacy and human dignity interests protected by s. 8. The deleterious effects on those privacy and dignity interests were mitigated by the fact that Mr. Hassan was no longer carrying the satchel on his person, resulting in a lessened expectation of privacy.
[124] I appreciate that Mr. Hassan could have been properly detained pursuant to the investigative detention power and searched for police safety purposes: Mann, at para. 40. However, it is open to debate whether the police could have searched the bag pursuant to their investigative detention powers under the circumstances: R. v. Plummer, 2011 ONCA 350, 272 C.C.C. (3d) 172, at paras. 53, 58, and 65-67; R. v. Lee, 2017 ONCA 654, 351 C.C.C. (3d) 187, at para. 59, 65. In this case, the Crown did not submit that D.C. Jimenez could have. From an evidentiary standpoint, D.C. Jimenez did not conduct the search for that purpose. Moreover, given my factual finding that the officers heard no “metallic” sound, I find it would have been a stretch based upon the other limited information the officer had at the time that D.C. Jimenez could have searched the satchel for officer safety reasons. This leads me to conclude that the impact on Mr. Hassan’s privacy and dignity interests is not mitigated by the fact that the officers would have discovered the firearm and magazines in any event had they proceeded properly. In Tim, Jamal J. cautioned against courts from speculating when considering the concept of discoverability under s. 24(2). He states at para. 94:
On the other side of the ledger, I am not prepared to speculate as to whether the evidence would have been discovered absent the Charter breaches. It is true that if the evidence were only discoverable through the Charter breach, then there would be a greater impact on the accused's Charter-protected interests (see Grant, at paras. 122 and 137; R. v. Keller, 2019 ABCA 38, 372 C.C.C. (3d) 502, at para. 64). However, "in cases where it cannot be determined with any confidence whether evidence would have been discovered" absent a Charter breach, "discoverability will have no impact on the s. 24(2) inquiry" (Grant, at para. 122; see also Hill, Tanovich and Strezos, at s. 19:49). Courts should not engage in speculation about discoverability.
[125] The impact of the violation of Mr. Hassan’s s. 8 right when he was strip searched is more evident and pronounced. This impact must be considered, as it is only through the illegal arrest that a strip search followed. As the court noted in Golden, at paras. 89-90, any strip search, even ones conducted in a reasonable manner at a police station, is inherently humiliating and degrading.
[126] On the other hand, when it comes to the s. 8 violation in the search of the RAV4, the impact on his privacy rights is less severe. Privacy interests in vehicles are lower than privacy interests in a home or office by comparison: R. v. Belnavis, [1997] 3 S.C.R. 341, at paras. 38-39; R. v. Steele, 2015 ONCA 169, at para. 18. They are certainly lower than privacy interests in the context of a search of one’s own body.
[127] The purpose of s. 10(b) is directed at assisting detainees with regaining their liberty and protecting them against the risk of involuntary self-incrimination: see R. v. Brydges, [1990] 1 S.C.R. 190, at pp. 202-3.
[128] Regarding the unreasonable delay in facilitating access to counsel, I find that the impact of the s. 10(b) violation on Mr. Hassan’s interests was significantly mitigated. Mr. Hassan did not incriminate himself and there is no indication that his liberty would have been obtained any earlier had the breach not occurred. Moreover, the lack of a causal connection between the s. 10(b) breach and the finding of any of the evidence lessened the impact of the breach: Keshavarz, at paras. 114-115.
[129] Similar factors mitigate the other aspect of the s. 10(b) violation. However, in my opinion, the impact from the failure to consult counsel in private is greater in that without privacy, there is a real risk Mr. Hassan could have incriminated himself given the presence of others in the cell area. Also, there is a real risk he may not have received adequate legal advice from duty counsel given the lack of privacy. On this point, I appreciate that Mr. Hassan did speak to his lawyer of choice, Jeffrey Reisman, at 7:36 a.m. However, I cannot conclude that this phone call ameliorated the serious effect on his Charter-protected interests, since the Agreed Statement of Fact does not indicate whether this call was conducted in private or not. Given the systemic nature of the problems in the booking area and the fact Mr. Hassan was last left in a cell, there is strong reason to believe it was not. Moreover, given the nature of the breach, even if his call to Mr. Reisman was Charter-compliant, the second call does not “cure” the first breach.
[130] Looking at all the violations, some having greater impact on Charter-protected interests than others, the second line of inquiry also strongly calls for the exclusion of the evidence especially since more than one interest was adversely affected.
4. Society’s Interest in the Adjudication on the Merits
[131] Finally, the court must determine whether the truth-seeking function of the trial is better served by admission or exclusion. The third inquiry is concerned with the integrity of the trial process, which suffers if reliable, cogent evidence is excluded. Conversely, the routine admission of evidence gathered by unconstitutional means will also undermine the integrity of the trial process: Grant, at paras. 79-81.
[132] In this case, what was seized is reliable and cogent evidence of very serious offences. [6] The evidence is essential to the Crown’s prosecution. The third line of inquiry strongly favours admission.
5. The Final Balancing
[133] The Grant analysis requires a careful balancing of the three lines of inquiry discussed above. The balancing exercise is qualitative and not capable of mathematical precision: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 36.
[134] In this case, the first line of inquiry strongly supports exclusion. It has been recognized that sufficiently serious Charter violations on their own can lead to the exclusion of the evidence, regardless of the outcome of the other two lines of inquiry: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 141. I am of the view that this is such a case. There are multiple serious Charter violations striking at the core of important constitutional values. This conclusion recognizes that the purpose for the exclusion of evidence is not to punish the police, no matter how serious the misconduct. Rather, on the facts as I have found them, I find that the long-term repute of the administration of justice will clearly suffer if the court does not grant a remedy that disassociates it from what happened here.
[135] Balancing all three lines of inquiry, the outcome must still be for exclusion. While society has a strong interest in gun offences being tried on their merits, the Supreme Court of Canada has cautioned against allowing the third branch of the Grant test to overwhelm all other considerations: Paterson, at para. 56. If the first and second inquiries strongly favour exclusion, the third inquiry will seldom, if ever, tip the balance the other way: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63; R. c. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89; Morelli, at paras. 98-112; Le, at para. 142. In this case, the first two lines of inquiry are strongly in favour of exclusion while the third, for inclusion. I find that the cumulative weight of the first two factors mandates that the balance falls for exclusion: Beaver, at para. 134.
[136] With the exclusion of the evidence, the Crown is unable to prove beyond a reasonable doubt any of the charges. Therefore, Mr. Hassan will be acquitted of all counts.
JUSTICE S. NAKATSURU
Released: March 2, 2023
[1] D.C. Jimenez admitted this was a mistake since a later check of the bylaw disclosed a 12 a.m. closing time.
[2] I accept D.C. Jimenez’s evidence that Mr. Hassan was not handcuffed over P.C. Demore’s testimony that he arrived to see Mr. Hassan already handcuffed on the ground. D.C. Jimenez’s testimony is more reliable as he would have good reason to recall if Mr. Hassan was not handcuffed.
[3] Brown v. Durham Regional Police Force (1998), 131 C.C.C. (3d) 1 (Ont. C.A.), at para. 79.
[4] The Crown did not raise any issue of standing or whether Mr. Hassan had a reasonable expectation of privacy in the bag: see for example R. v. B. (L.), 2007 ONCA 596, 227 C.C.C. (3d) 70, at paras. 71-72; R. v. Wilkinson, 2023 BCCA 3, at paras. 67-68.
[5] The police were aware that Mr. Hassan had a brother who had the same name, “Muhammed Hassan”, but with a different middle name.
[6] The offence charged resulting from the seizure of the cocaine in the RAV4 is much less serious since Mr. Hassan is facing only a charge of simple possession.