COURT FILE NO.: CRIM J(P)809/21 DATE: 20230306

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Mr. R. Raeesi, for the Crown/Respondent

• and -

HAMZA EL KHIRAOUI CHAKI Mr. J. Mencel, for the Accused/Applicant

HEARD: October 24, 25, and 26, 2022 by Zoom video conference

REASONS FOR DECISION

Stribopoulos J.:

Introduction

[1] The accused, Mr. El Khiraoui Chaki, faces various firearms charges. Shortly before his arrest, he had been seated in the passenger seat of a vehicle police were investigating. The police arrested the driver, ostensibly on the authority of a warrant, and then found a loaded handgun in Mr. El Khiraoui Chaki's satchel when they searched the vehicle.

[2] As case management judge, I heard a Charter application that Mr. El Khiraoui Chaki brought. He claims the police breached his sections 8, 9, 10(a), and 10(b) Charter rights during the brief investigation that preceded the discovery of the handgun, and he seeks an order excluding the firearm from evidence under section 24(2) of the Charter.

[3] The Crown denies that the police breached Mr. El Khiraoui Chaki's Charter rights. Alternatively, even if the court were to find a constitutional violation, the Crown submits that an order excluding the firearm from evidence would be inappropriate in all the circumstances.

[4] These reasons will proceed in two main parts. The first part will summarize the evidence on the application. Then, in the second part, these reasons will address the issues raised given the evidence, the governing principles, and the court's findings.

I. The Evidence

[5] The evidence on the application consisted mainly of the testimony of the two police officers involved in the investigation that culminated in the discovery of the handgun.

[6] At the time, Constables McLean and Gillespie had been with the Peel Regional Police for seven and four years, respectively. Although their evidence was mostly consistent, some differences existed in their respective accounts of the relevant events.

Police attend the Motel 6 parking lot

[7] Near the tail end of their night shift, sometime after 4:00 a.m. on Saturday, July 18, 2020, Constables McLean and Gillespie attended the Motel 6 at 2935 Argentia Road in the City of Mississauga. The officers were in uniform and travelling in a marked police vehicle. P.C. McLean was driving while P.C. Gillespie occupied the front passenger seat.

[8] The officers did not attend the motel in response to a specific call. Rather, they were engaged in proactive policing. From experience, they knew that the motel was a trouble spot for trespassing and criminal activities, with the frequent presence there of persons who were breaching court orders, engaging in drug offences, or involved with human trafficking. As a result, the motel had extended a standing invitation to the Peel Regional Police to enforce the Trespass to Property Act, R.S.O. 1990, c. T.21 at the premises.

[9] Although neither had a specific recollection of having done so, both officers testified that on the morning of July 18, as they drove around the parking lot, they would have queried the license plates of vehicles parked there. This would have been to look for stolen cars or registered vehicle owners who were subject to conditions prohibiting them from being at that premises.

A suspicious vehicle

[10] As the officers drove through the motel's parking lot, they noticed a red four-door Nissan Murano SUV backed into a parking spot. It caught their attention because they could see two males inside the vehicle, and it was after 4:00 a.m.

[11] The officers each maintained that they could not discern any of the men's distinguishing features (including their race) because it was dark out, the artificial lighting was limited, and condensation had fogged up the windshield. Further, P.C. Gillespie testified that the driver's window was down, and that she could see the driver's seat partially reclined from her vantage point and observe that the driver was not seated upright in his seat. However, neither officer could recall whether the SUV was running.

[12] The officers stopped their cruiser in front of the SUV perpendicular to its left front bumper. Each maintained that they deliberately did not block the vehicle in, citing officer safety as the reason for not doing so. They each testified that the SUV could still have driven away to its right.

[13] Before investigating the occupants of the SUV further, P.C. Gillespie notified police dispatch of the vehicle they were investigating and queried its license plate, learning that the registered owner was a company with an address in Uxbridge, Ontario. By then, it was 4:19 a.m.

[14] P.C. McLean acknowledged investigating the vehicle and its occupants because he found the circumstances suspicious. Specifically, the two male occupants were seated in a parked car in the Motel 6 parking lot at 4:19 in the morning. However, he rejected the suggestion that he suspected they were involved in criminal activity. Instead, he testified to having an "inkling maybe that something was amiss."

[15] Similarly, P.C. Gillespie testified to thinking that "something was going on" given the circumstances and the hour. For example, she mentioned the possibility that the SUV’s occupants were trespassers or that someone in the vehicle was experiencing a medical emergency.

The officers approach the SUV and speak to the driver

[16] P.C. McLean then went to the driver's open window and spoke to him. Although he could not recall if he first went to the SUV alone, P.C. Gillespie clearly remembered them approaching together and P.C. McLean taking the lead in speaking with the driver.

[17] According to both officers, only once they were at the driver's side of the SUV were they able to see that the driver was a "Black male” and that the passenger was an "Arab male." In the notes she made later that morning, P.C. Gillespie described the occupants in these terms.

[18] P.C. McLean could not recall what he said to the driver; he failed to make any notes concerning their conversation. However, he maintained that unprompted, the driver, Jamil Jean Louis, produced a Quebec driver's license and handed it to him. At that point, P.C. McLean testified to giving the driver's license to P.C. Gillespie so she could query it through police databases.

[19] Unfortunately, P.C. Gillespie also had an imperfect memory of what P.C. McLean said to the driver. However, unlike P.C. McLean, she remembered that when the driver produced his license, he told the officers that he had a warrant out for his arrest in Quebec. And he also remarked that other police officers had let him go before because the police in Quebec would not return him on that warrant. P.C. Gillespie did not memorialize what she claimed Mr. Jean Louis said concerning having an outstanding arrest warrant; she first disclosed it to the Crown during a meeting in February 2022.

[20] The officers agreed that once Mr. Jean Louis produced his license, Constable Gillespie took it back to the police cruiser to run police database checks on him. P.C. Gillespie testified that she wanted to check on the status of the warrant and determine its radius.

[21] While P.C. Gillespie was in the cruiser running database checks, P.C. McLean remained at the driver's side of the SUV. Having failed to make notes about their conversation, he could not recall anything specific about what he said to the driver during that timeframe.

[22] However, P.C. McLean remembered that the driver produced proof of insurance and a rental agreement for the vehicle, documentation that P.C. McLean acknowledged he would have ordinarily requested in such circumstances.

[23] Additionally, P.C. McLean had made a notation in his notebook that the young men were "unable to provide a key for the motel," which led him to believe that he must have asked them if they were staying there. During cross-examination, P.C. McLean acknowledged that the inability to produce a room key did not necessarily mean the young men were not entitled to be at the motel. After all, he conceded, they could have just been arriving and about to check in, they could have been staying at the motel and lost their room key, or they could have been at the motel to visit someone registered there.

[24] P.C. McLean testified that while he waited on P.C. Gillespie to conduct records checks, there was nothing concerning about the behaviour of the young men. On the contrary, they were cooperative, and the driver produced the requested documentation.

The arrest warrant

[25] P.C. Gillespie used Mr. Jean Louis's name and date of birth from his driver's license to run him through CPIC using the mobile computer in the police cruiser. She testified that from that query, she learned he had an arrest warrant for possessing a controlled substance.

[26] Unfortunately, P.C. Gillespie did not make any further notes concerning the arrest warrant and had difficulty remembering additional details about what CPIC revealed beyond recalling that the warrant was from Quebec.

[27] The information available to P.C. Gillespie over CPIC concerning the arrest warrant formed part of the record on the application. Beyond what she remembered during her testimony, the CPIC entry she accessed also noted the following in block letters: "RADIUS: QUEBEC, AILLEURS AVISER,” (which means “elsewhere notify” when translated to English). However, P.C. McLean testified that she did not remember seeing anything about a radius limitation on the warrant when she queried CPIC and that she was not fluent in French.

[28] Both P.C. Gillespie and P.C. McLean testified regarding their understanding of their authority to arrest based on an arrest warrant, whether from Ontario or another province.

[29] P.C. Gillespie testified that at Ontario Police College, she learned she has the authority to arrest based on an arrest warrant issued anywhere in Canada. She testified that upon learning that an individual is subject to an outstanding arrest warrant, she would place the person under arrest, including handcuffing and detaining them in her cruiser.

[30] After that, based on further inquiries made by dispatch in consultation with her Staff Sergeant, if the police service responsible for the warrant wanted the individual's return, they would hold the person and arrange to facilitate that – for example, either with officers from the other force coming to Peel or meeting somewhere between the two jurisdictions to transfer custody of the person.

[31] In contrast, should the police service responsible for the arrest warrant advise that they do not intend to have the person "returned," P.C. Gillespie testified that she would then release the person unconditionally and share any information about the individual's current whereabouts with the police service responsible for the warrant.

[32] P.C. Gillespie acknowledged that information concerning arrest warrants on CPIC often includes a radius followed by "otherwise advise." But, according to her, the radius specified does not change her approach.

[33] Instead, she testified that she always arrests the person and holds them until they hear back from the issuing police service to determine their intentions. She cited "officer safety" as her reason for taking that approach, explaining that the person could take flight if told about the warrant and not arrested. Ultimately, she testified that it is easier to arrest, hold, and release than to detain and later arrest.

[34] Constable McLean gave similar testimony to that of P.C. Gillespie concerning his approach when dealing with arrest warrants subject to a radius limitation. He agreed that rather than effecting an arrest, he could detain the person pending confirmation that the police force responsible for the warrant would return the person. However, he testified that in such circumstances, that is "not his practice."

[35] Unlike P.C. Gillespie, P.C. McLean acknowledged that out-of-province arrest warrants are subject to different rules. In that regard, he testified that out-of-province warrants will not necessarily be returned and that it "depends on the type of warrant, the offence, etc."

The arrest of Mr. Jean Louis

[36] After conducting the CPIC check on Mr. Jean Louis, which took about two minutes to complete, P.C. Gillespie shared with P.C. McLean that there was a warrant for his arrest from Quebec. The officers then made a joint decision to arrest him based on the authority of the Quebec warrant.

[37] The two officers then approached the driver's side of the SUV together. At that point, P.C. Gillespie asked Mr. Jean Louis to step out of the vehicle and advised him that he was under arrest.

[38] The driver and the passenger had worn satchels as they sat in the SUV before the arrest. As Mr. Jean Louis stepped out of the vehicle, he was still wearing his, and P.C. Gillespie removed it and placed it on the driver's seat.

[39] At that point, P.C. Gillespie escorted Mr. Jean Louis to the police cruiser, informed him of his rights to counsel, handcuffed him with his hands behind his back, and then searched him for weapons before securing him in the cruiser's backseat. She testified that Mr. Jean Louis was compliant. As a result, she estimated that all of that took approximately one minute to complete.

[40] At 4:24 a.m., shortly after arresting Mr. Jean Louis, P.C. Gillespie radioed dispatch to advise they had someone in custody "on a warrant." A couple of minutes later, at 4:26 a.m., she radioed dispatch, asking: "Can you confirm the warrant for the party." She did so because she wanted to confirm the warrant's existence. At 4:28 a.m., the dispatcher sent a message through the police communications system, presumably to the Staff Sergeant on duty, asking them to confirm the warrant for P.C. Gillespie.

The decision to search the vehicle

[41] Following the arrest, P.C. McLean testified that he searched the vehicle incidental to the arrest to look for weapons and documents that might further assist in identifying Mr. Jean Louis. He testified that he understood he could search areas and items "within the driver's immediate reach." However, he emphasized that he was not searching for evidence because this was an arrest based on the authority of a warrant and not for an offence.

[42] During cross-examination, P.C. McLean insisted that he had the authority to search the vehicle for weapons and documents that might identify Mr. Jean Louis further. However, he acknowledged that by the time of the search, Mr. Jean Louis was in handcuffs, had his person searched, was secured in the rear of the police cruiser, and had been cooperative throughout. And further, by that point, he had no reason to doubt Mr. Jean Louis's identity, given that he had produced his license (the photo matched his appearance) and the vehicle rental agreement in his name.

[43] During his testimony, P.C. McLean insisted that, even after Mr. Jean Louis's arrest based on the warrant and despite the other circumstances, he still had no suspicion that either young man might be involved in something nefarious. As a result, he maintained that his purpose in searching the vehicle was not to locate evidence of a crime.

[44] In direct examination, P.C. McLean testified that he asked Mr. Jean Louis for the rental agreement for the SUV because, in his experience, rental vehicles often are stolen. Asked during re-examination whether there was any other reason for requiring Mr. Jean Louis to produce the agreement, he volunteered that he knows from experience that criminals use rental vehicles. He testified that they do so because it shields their identity when police query the vehicle's license plate and that criminals sometimes even have third parties rent cars for them. P.C. McLean testified that if the renter were someone other than the driver, that might provide a "further inkling toward involvement in criminal activity."

Mr. El Khiraoui Chaki's status during the vehicle search

[45] After P.C. Gillespie arrested Mr. Jean Louis, P.C. McLean testified to telling the passenger – Mr. El Khiraoui Chaki – to step out of the vehicle because he was going to search the SUV. Mr. El Khiraoui Chaki complied with that direction. However, P.C. McLean testified that he could not precisely remember what he said to cause him to exit the vehicle.

[46] When he and P.C. Gillespie returned to the vehicle to arrest the driver, P.C. McLean noted that both young men were wearing satchels. However, he testified that Mr. El Khiraoui Chaki left his inside the SUV when he exited. Despite being unable to remember what he said to him exactly, P.C. McLean denied telling Mr. El Khiraoui Chaki to remove his satchel and leave it in the vehicle.

[47] P.C. McLean testified that almost immediately upon getting out of the vehicle, Mr. El Khiraoui Chaki began asking for a sergeant to attend the location and said, "You cannot search my things; I know my rights." He also insisted that he be permitted to retrieve his property from the vehicle.

[48] Although P.C. McLean could not recall if he replied to that request, he agreed that he did nothing to facilitate the return of Mr. El Khiraoui Chaki's satchel to him. He explained that he did not because he was about to search the vehicle, including both satchels. In that regard, he referenced his authority to search incidental to arrest as granting him the power to do so because they were within the driver's reach.

[49] Once Mr. El Khiraoui Chaki stepped out of the SUV, P.C. McLean told him to stand at the front of the vehicle. He testified that at that point, Mr. El Khiraoui Chaki was not detained and was free to go if he wished because he had no basis for thinking he was involved in anything that would justify his detention. However, P.C. McLean acknowledged that he did not tell Mr. El Khiraoui Chaki he could leave.

[50] P.C. McLean testified that once he was out of the SUV, Mr. El Khiraoui Chaki moved to the front of the vehicle as directed. After that, he moved to a protruding grassy area separated from the parking surface by a curb, ten feet away from the passenger side of the SUV. With that, P.C. McLean testified that he began to search the vehicle.

[51] P.C. Gillespie testified that while speaking with Mr. Jean Louis at the police cruiser following his arrest and as P.C. McLean searched the SUV, she recalled Mr. El Khiraoui Chaki saying he wanted to retrieve his belongings from the vehicle. At the time, he was seated on the curb in the parking lot beside the SUV. In response, she told him to remain seated for officer safety reasons while P.C. McLean searched the SUV. Mr. El Khiraoui Chaki followed that direction and continued sitting on the curb while P.C. McLean conducted the search.

The initial search of the vehicle and Mr. El Khiraoui Chaki's arrest

[52] P.C. Mclean began his search on the driver's side of the SUV. The first item he examined was Mr. Jean Louis's satchel. Inside, he discovered Ziplock bags containing a large amount of what he believed to be cocaine, along with a scale.

[53] Upon discovering the cocaine and the scale, P.C. McLean concluded that in all the circumstances, he had reasonable grounds to arrest both men for possessing cocaine for the purpose of trafficking. As a result, at 4:29 a.m., he advised Mr. El Khiraoui Chaki he was under arrest for that offence, apprised him of his rights to counsel, handcuffed him to the front, and sat him back on the curb because they would need to wait for a second vehicle to attend to transport him to the division.

[54] Soon after, P.C. Gillespie went to the police cruiser to inform Mr. Jean Louis that he was also being charged with that offence and again apprised him of his rights to counsel.

The continued search of the vehicle and the discovery of the handgun

[55] After arresting Mr. El Khiraoui Chaki and apprising him of his rights, which took a few minutes, P.C. McLean continued searching the vehicle. He worked from the driver's side of the front passenger compartment towards the passenger side. In the centre console, he found a Ziplock bag containing marihuana.

[56] After that, P.C. McLean exited the driver's side and went around to the vehicle's passenger side and searched the area of the front passenger seat. At that point, he searched Mr. El Khiraoui Chaki's satchel. Inside, he found a loaded handgun, what turned out to be $1,155 in Canadian currency and Mr. El Khiraoui Chaki's passport. By that point, it was 4:37 a.m.

[57] After discovering the handgun, P.C. McLean returned to where Mr. El Khiraoui Chaki was seated on the curb and advised him that he was also in custody for possessing a firearm, cautioned him concerning that charge, and again informed him of his rights to counsel. P.C. Gillespie returned to the police cruiser and did the same with Mr. Jean Louis.

[58] After that, P.C. McLean and P.C. Gillespie searched the entire vehicle together.

An update on the arrest warrant

[59] At 4:44 a.m., while the officers were still at the motel with Mr. El Khiraoui Chaki and Mr. Jean Louis in custody, they received a message on their in-car computer. It read:

HI, TO FOLLOW UP YOUR MESSAGE, DO NOT DETAIN THE SUBJECT FOR OUR WARRANT THE WARRANT IS QUEBEC RADIUS ONLY. PLEASE ADVISE THE SUBJECT THAT HE IS WANTED BY MONTREAL POLICE SERVICE. ALSO, ADVISE US OF THE A/M'S CURRENT ADDRESS, PHONE NUMBER, CELL NUMBER, EMAIL ADDRESS. AN OFFICER FROM THE WARRANT UNIT WILL CONTACT THE SUBJECT REGARDING HIS OUTSTANDING FILE IN MONTREAL.

PLEASE PROVIDE THE SUBJECT OUR PHONE NUMBER: 514-280-0163

THANK YOU FOR YOUR HELP IN THIS MATTER.

FOR MAXIME BOULAIS ID.6352, OFFICER IN CHARGE

SENT BY OP JPL CIP

II. Issues, Law, and Analysis

[60] Mr. El Khiraoui Chaki claims that during the brief investigation culminating in his arrest, the police breached his sections 8, 9, 10(a) and 10(b) Charter rights. In contrast, the Crown maintains that the police acted lawfully and constitutionally throughout their dealings with Mr. El Khiraoui Chaki.

[61] The various Charter claims turn on three main questions:

1. Did the police detain Mr. El Khiraoui Chaki before formally arresting him?
2. Did P.C. McLean have lawful authority to seize Mr. El Khiraoui Chaki's satchel to later search it?
3. Did Mr. El Khiraoui Chaki’s race influence, at least in part, how the investigation unfolded?

[62] The answers to these three questions are key to deciding whether Mr. El Khiraoui Chaki has made out his various Charter claims. As a result, I will consider these questions in turn and explain the constitutional implications of the answers to each of them.

[63] Before I do so, some more general observations are necessary. First, as the Court of Appeal for Ontario has noted, there is nothing inappropriate or inherently suspect from a constitutional standpoint about proactive policing, more commonly referred to as "community policing": see Brown v. Durham Regional Police Force (1998), 43 O.R. (3d) 223 (C.A.), at paras. 66-67 [Brown 1998]. As Doherty J.A. observed: "The police duty to prevent crime and maintain public peace commands proactive measures on their part": Brown 1998, at para. 66.

[64] Therefore, the Charter does not prevent the police from deploying to particular areas, including known trouble spots, to interact with people and make their presence felt. That approach to policing can help deter crime and provide members of the public with a much-needed sense of security. However, when engaged in community policing, the police must be careful to respect the legal and constitutional limits on their authority. When they fail to abide by those constraints on their powers, their conduct exceeds the bounds of community policing norms: see R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 34. When that happens, one of the principal aims of such policing, maintaining the community's sense of security, is undermined.

[65] After all, the public's confidence in the police and their willingness to report crimes and cooperate in investigations depends, in no small part, on its trust that they act legitimately: see Michael H. Tulloch, Report of the Independent Street Checks Review, Toronto: Queen's Printer for Ontario, 2018, at pp. 12, 45. As the Supreme Court of Canada observed in Le, "Effective law enforcement depends upon the co-operation of the public and the police must act in a manner that fosters co-operation and contributes to the public's perception of police legitimacy": at para. 162.

[66] With that introduction, I will now consider the specific issues raised by Mr. El Khiraoui Chaki's Charter application.

1) Did the police detain Mr. El Khiraoui Chaki before formally arresting him?

[67] On behalf of Mr. El Khiraoui Chaki, Mr. Mencel argues that the police detained his client when P.C. McLean directed him out of the SUV. In contrast, for the Crown, Mr. Raeesi contests that there was a "detention" from a Charter standpoint at any time before Mr. El Khiraoui Chaki's formal arrest.

[68] The point at which an individual's interaction with the police crosses the line between consensual and coerced, such that it becomes a "detention" under the Charter, has several constitutional implications.

[69] First, when the police detain an individual without lawful authority, the person's section 9 Charter right not to be arbitrarily detained will necessarily be breached: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 54-56; Le, at para. 124. In this case, the parties agree that the police lacked any legal authority to detain before P.C. McLean found the cocaine in Mr. Jean Louis's satchel and arrested Mr. El Khiraoui Chaki because of that discovery.

[70] The police did not have the power to detain Mr. El Khiraoui Chaki under the Trespass to Property Act. Even if he could not account for his presence at the motel, that would have only entitled the police to ask him to leave, not detain him. They could only have lawfully arrested him as a trespasser if he refused to leave when directed: see Trespass to Property Act, s.2(1)(b), and s. 9(1).

[71] Nor did P.C. McLean have any basis to detain Mr. El Khiraoui Chaki for criminal investigative purposes. After all, the officer denied suspecting he was involved in something unlawful. And any "inkling" he had that something "was amiss" fell well short of reasonable grounds to suspect his involvement in recent or still unfolding criminal activity, the legal standard necessary to justify an investigative detention: see R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 34, 45; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 35.

[72] Additionally, section 10 of the Charter guarantees certain fundamental rights to everyone on "arrest or detention" (emphasis added). These include, under s. 10(a), the right "to be informed promptly of the reasons therefor." And, under s. 10(b), the right "to retain and instruct counsel without delay and to be informed of that right." These guarantees are subject to strict temporal requirements.

[73] As section 10(a) instructs, a police officer who detains an individual must tell the person "promptly" the reasons for their detention. The case law makes clear that this means immediately: see R. v. Nguyen, 2008 ONCA 49, 231 C.C.C. (3d) 541, at paras. 16-22. The only justification for any delay is when the police must first gain control over a detainee whose actions give rise to a situation of danger: see R. v. Boliver, 2014 NSCA 99, 318 C.C.C. (3d) 562, at paras. 15-20.

[74] Similarly, as stated in section 10(b), police must impart the required information about the right to counsel "without delay." The Supreme Court of Canada has interpreted that to mean "immediately" upon detention, also subject only to any delays necessary to address genuine safety concerns: see R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 2, 42.

[75] In this case, the parties agree that P.C. McLean only fulfilled his informational duties under sections 10(a) and 10(b) after he arrested Mr. El Khiraoui Chaki.

[76] Given all this, the question of whether the police detained Mr. El Khiraoui Chaki before arresting him is critical. If they did, it follows that his section 9, 10(a) and 10(b) Charter rights were each violated.

[77] The Supreme Court of Canada has defined "detention" in a manner meant to achieve the purposes of sections 9 and 10 of the Charter without overshooting the mark and triggering constitutional protection when it would be neither necessary nor appropriate: see Grant, at para. 28. It has observed that "not every trivial or insignificant interference with liberty attracts Charter scrutiny"; instead, only a person "whose liberty is meaningfully constrained has genuine need of the additional rights accorded by the Charter to people in that situation": Grant, at para. 26; see also Mann, at para. 19; Suberu, at para. 3; Le, at para. 27.

[78] The Supreme Court explained in Grant that the pairing of "detained" and "imprisoned" in section 9 suggests that “a ‘detention’ requires significant deprivation of liberty": at para. 29. Similarly, the coupling of "arrest" with "detention" in section 10 means that a detention only occurs "when the deprivation of liberty may have legal consequences": Grant, at para. 29. As a result, a "detention" arises only when police have significantly constrained an individual's freedom to choose whether to cooperate in circumstances where the individual faces real legal jeopardy.

[79] The Supreme Court has defined "detention" as capturing those situations in which an individual has been "taken into the effective control of the state authorities": Grant, at para. 22. Circumstances in which a person is subject to "compulsory restraint" depriving them of their "choice to walk away": Grant, at paras. 25, 39. The Supreme Court's jurisprudence recognizes that detention may arise through either physical or psychological compulsion.

[80] A detention results when the police physically take control of a person: see R. v. Therens, [1985] 1 S.C.R. 613, at p. 642; R. v. Thomsen, [1988] 1 S.C.R. 640, at pp. 648-49; Grant, at para. 25; Le, at paras. 26-27. For example, police detain if they take hold of a person, put them in handcuffs, or confine them in a police car. That is not the type of detention at issue on this application. After all, the police only took physical control of Mr. El Khiraoui Chaki when they arrested and handcuffed him.

[81] Beyond physical restraint, the law also recognizes that detention can occur through two kinds of psychological compulsion. First, a detention results when an individual complies with a police officer's demand or direction while under a legal obligation to do so: see Grant, at para. 30; Le, at para. 25. The most common example occurs when a motorist stops their vehicle at a police officer's direction as required by provincial traffic legislation: see R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 31. In this case, Mr. El Khiraoui Chaki only became subject to a legal obligation to remain in the police's presence after his formal arrest.

[82] Second, a detention results when an individual complies with a police officer's demand or direction, despite being under no legal obligation to do so, if a reasonable person in all of the same circumstances would conclude they were not free to go: see Grant, at paras. 30-31; Le, at para. 25. That is the type of psychological detention at issue on this application. The question is whether police detained Mr. El Khiraoui Chaki in this way before arresting him. In this category, the analysis focuses on the state's conduct, what the police did and said, and how a reasonable person in the same circumstances would understand the effect of that conduct: see Grant, at para. 31; Le, at para. 27.

[83] The objective nature of the inquiry means that a police officer's subjective intentions are not determinative: see Grant, at para. 32. As a result, in this case, P.C. McLean's evidence that, from his perspective, Mr. El Khiraoui Chaki was free to leave once he exited the SUV carries no weight in the analysis. Ultimately, whether the situation was such that it amounted to a "detention" is a legal question for the court to determine based on all the circumstances and not something decided by the police officer whose actions are subject to challenge: see R. v. Reid, 2019 ONCA 32, 370 C.C.C. (3d) 265, at para. 43.

[84] In light of that, it may sometimes be difficult for police to assess the potentially coercive impact of their words and actions on a person with whom they interact. Because of this, in Grant, the Supreme Court noted that it is always open to the police "to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go": Grant, at para. 32. In this case, however, at no point before Mr. El Khiraoui Chaki’s arrest did P.C. McLean tell him that he was free to leave.

[85] The Supreme Court in Grant supplied a list of factors for courts to consider when deciding if a person was subject to this second type of psychological detention. These are (at para. 44):

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation. (b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter. (c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[86] This list of factors, however, is not exhaustive: Le, at para. 31. The court must consider them while keeping in mind "all the circumstances of the particular situation, including the conduct of the police”: Grant, at para. 31; see also Le, at para. 31. Further, the court must conduct a "realistic appraisal of the entire interaction as it developed" instead of "a minute parsing of words and movements": Grant, at para. 32; see also Le, at para. 73.

[87] Based on all the circumstances, considering the governing legal principles, I am satisfied that the police detained Mr. El Khiraoui Chaki before his formal arrest. I have come to that conclusion for several reasons.

[88] First, the circumstances giving rise to the encounter, as Mr. El Khiraoui Chaki would have reasonably perceived them, would have created the inescapable impression that the police were singling out him and Mr. Jean Louis for focused investigation. After all, soon after police approached them, they were required to account for their presence in the motel parking lot. This interaction involved much more than a friendly chat or a wellness check.

[89] Second, there is the nature of the police's conduct. Based on the testimony of P.C. McLean and P.C. Gillespie and my impression of each of them, I do not doubt that their tone was professional throughout their dealings with the young men. However, it is also apparent that by the point P.C. McLean told Mr. El Khiraoui Chaki to exit the SUV, he would have reasonably perceived that "request" as a command.

[90] Additionally, based on the evidence, I am satisfied that Mr. El Khiraoui Chaki was not only told to step out of the vehicle but also to leave his satchel in the SUV. Although P.C. McLean insisted that he did not tell Mr. El Khiraoui Chaki to do so, I find it difficult to credit that aspect of his evidence because he could not recall what he said when directing Mr. El Khiraoui Chaki out of the vehicle. Similarly, although he remembered that Mr. El Khiraoui Chaki was "wearing" the satchel while seated in the car, he could not say how he came to remove it.

[91] That P.C. McLean instructed Mr. El Khiraoui Chaki to remove the satchel and leave it in the car is the only reasonable explanation for all the evidence. In that regard, it is especially noteworthy that, as Mr. El Khiraoui Chaki exited the vehicle, he immediately objected to the police searching his property, asked for the return of his satchel, and requested that a sergeant attend the location. As his protests make apparent, it was evident to Mr. El Khiraoui Chaki that leaving it in the vehicle would risk the police searching it and discovering the firearm he had hidden inside. In these circumstances, the only reasonable explanation for his having removed the satchel and leaving it in the vehicle was that he had not been given any choice in the matter.

[92] Beyond instructing Mr. El Khiraoui Chaki to exit the SUV and leave his satchel behind, P.C. McLean also directed him to stand by the front of the vehicle. Eventually, he came to be seated on the curb adjacent to the SUV while P.C. McLean began the vehicle search. That his positioning on the curb was not a matter of choice on his part is made evident by P.C. Gillespie's testimony that she told him to remain seated there because of officer safety concerns.

[93] The location and the hour would also have contributed to the coerciveness of the encounter. Although the motel parking lot is a public place, at 4:30 in the morning, only the police, Mr. El Khiraoui Chaki, and Mr. Jean Louis were likely at that location. Moreover, at the critical time, Mr. Jean Louis was under arrest and confined in the backseat of the police cruiser. In these circumstances, told by uniformed police officers to exit the vehicle and leave their satchel behind, and then to stand by the front of the SUV and subsequently stay seated on the curb, a reasonable person in Mr. El Khiraoui Chaki's shoes would undoubtedly conclude that they had no alternative but to remain and obey.

[94] Finally, I am mindful of Mr. El Khiraoui Chaki's characteristics and circumstances. At the time, he was just 19 years old. And he is racialized, as was his 20-year-old companion. In that regard, I am mindful of the historically fraught relationship between members of the Arab and Black communities and law enforcement: see Le, at para. 75. That context would undoubtedly affect the perceptions of a reasonable person in Mr. El Khiraoui Chaki's circumstances and only magnify the power imbalance between such a person and the police.

[95] All that said, Mr. El Khiraoui Chaki is not unsophisticated. After all, he had the wherewithal to protest that the police had no right to search his property, to ask for the return of his satchel, to request the attendance of a sergeant, and to tell the officers that he knew his rights. Nevertheless, as the Supreme Court of Canada cautioned in Le, "undue focus" on the claimant's "subjective perceptions detracts from the underlying rationales for adopting an objective test": at para. 115. In any event, even if Mr. El Khiraoui Chaki "knew his rights," the actions of the police in all the circumstances would inescapably have left him with the perception that he was not free to walk away. No reasonable person in his shoes could have concluded otherwise.

[96] For all these reasons, I am satisfied that Mr. El Khiraoui Chaki was detained, at least by the point when police instructed him to exit the SUV and leave his satchel behind, and then directed his movements once he was outside of the vehicle.

[97] As a result, in the circumstances, the police violated Mr. El Khiraoui Chaki's sections 9, 10(a) and 10(b) Charter rights.

[98] All that said, I do not intend to suggest that anytime the police are about to carry out a lawful vehicle search, they act unlawfully by telling the occupants to exit or direct their movements in the interests of police safety. After all, it would be unreasonable to expect the police to search a vehicle while its occupants hover over them. However, as explained in the next section, I am not satisfied that this was a lawful vehicle search and that the police directed Mr. El Khiraoui Chaki's movements in the interests of police safety incidental to such a search.

2) Did P.C. McLean have lawful authority to seize Mr. El Khiraoui Chaki's satchel to later search it?

[99] Mr. El Khiraoui Chaki claims that the search of his satchel by P.C. McLean violated his section 8 Charter rights. Mr. Mencel submits that the search was unreasonable because the only ostensible authority to justify it was Mr. Jean Louis's arrest. And, critically, that arrest was unlawful and therefore unconstitutional. Mr. Mencel argued that what police discover by violating one person's rights cannot be used to furnish grounds to arrest another person and search them or their belongings.

[100] The Crown responds that Mr. El Khiraoui Chaki lacks standing to challenge the legality of Mr. Jean Louis’s arrest and the search of his satchel. As a result, that arrest and the associated search are entirely irrelevant to Mr. El Khiraoui Chaki’s section 8 Charter claim. Given that, Mr. Raeesi did not make a serious effort to defend the legality of Mr. Jean Louis’s arrest based on the warrant from Quebec. What was crucial, he argued, was that the police had grounds to arrest Mr. El Khiraoui Chaki and lawfully search his satchel incidental to that arrest.

[101] Given the finding that P.C. McLean directed Mr. El Khiraoui Chaki to leave his satchel in the SUV so that the officer could search it, in my view, questions of standing do not arise for consideration on this application.

[102] Section 8 of the Charter protects against "unreasonable search or seizure" (emphasis added). The Supreme Court of Canada has defined a "seizure" as the taking of a thing from a person by a public authority without the person's consent provided that the individual has a reasonable expectation of privacy in the thing taken: see R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 431, 435; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 34; Quebec (Attorney General) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, at para. 52.

[103] To be sure, Mr. El Khiraoui Chaki enjoyed a reasonable expectation of privacy in his satchel. After all, people have a relatively high expectation of privacy in items that ordinarily contain their personal belongings, like their suitcases, briefcases, and purses: see Chehil, at para. 58 (luggage); R. v. Mohamad (2004), 69 O.R. (3d) 481 (C.A.), at paras. 23-27 (briefcase); R. v. Le, 2013 BCCA 442, 301 C.C.C. (3d) 522, at para. 25 (purse). Satchels are no different.

[104] When P.C. McLean directed Mr. El Khiraoui Chaki to exit the SUV, leave his satchel in the vehicle (so he could search it), and refused to return it to him when requested, the officer took control of it, thereby affecting a "seizure" under section 8 of the Charter.

[105] The Supreme Court of Canada has recognized that a warrantless search or seizure is presumptively unreasonable under section 8 of the Charter: see Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 161. To rebut that presumption, the Crown must establish, on a balance of probabilities, that a search or seizure (i) was authorized by law; (ii) the law itself was reasonable; and (iii) that it was carried out reasonably: see R. v. Collins, [1987] 1 S.C.R. 265, at p. 278; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 21; Cole, at para. 37.

[106] In the circumstances, the Crown has failed to establish the first requirement. The only purported authority for the seizure of the satchel (to facilitate its search) was search incident to arrest. That common law power can justify both searches and/or seizures: see R. v. Caslake, [1998] 1 S.C.R. 51, at para. 15.

[107] The Supreme Court of Canada has identified three requirements for a valid search incident to arrest. First, there must be a lawful arrest; second, the search (or seizure) must be truly incidental to the arrest in the sense that it is for a valid law enforcement purpose related to the reasons for the arrest; and third, it must be conducted reasonably: see R. v. Tim, 2022 SCC 12, 412 C.C.C. (3d) 147, at para. 49; R. v. Stairs, 2022 SCC 11, 412 C.C.C. (3d) 283, at paras. 6, 35; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518, at para. 37; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 27. In the circumstances, I am not satisfied that the Crown has established the first and second requirements in this case.

[108] Concerning the first requirement, the need for a lawful arrest, the warrant from Quebec did not furnish police officers in Ontario with the authority to arrest Mr. Jean Louis: see Criminal Code, R.S.C. 1985, c. C-46, s. 514. For a police officer in Ontario to carry out a lawful arrest based on that warrant, a justice in this province would have needed to endorse it under section 528 of the Criminal Code.

[109] Although it is not inconceivable, it is hard to imagine police in Quebec going to the trouble of obtaining the required endorsement to authorize an arrest in a different province for a charge as comparatively minor as simple possession of a controlled substance.

[110] In any event, the entry relating to the arrest warrant on CPIC – "RADIUS: QUEBEC, AILLEURS AVISER" – should have made it readily apparent, even to someone who was not fluent in French, that it did not supply authority to arrest in Ontario.

[111] In these circumstances, Mr. Jean Louis's arrest was unlawful, and by implication, so was the seizure of Mr. El Khiraoui Chaki's satchel to facilitate its subsequent search.

[112] The legality of the arrest to one side, the Crown has also failed to establish the second requirement. The exercise of the search incident to arrest power is only justifiable if the purpose of the search relates to the purpose of the arrest: see Caslake, at para. 17. That includes "ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee's trial": Caslake, at para. 19; see also Cloutier v. Langlois, [1990] 1 S.C.R. 158, at p. 186. For a search or seizure to be authorized by this power, a police officer must subjectively believe that it will serve one of these purposes, and that belief must be objectively reasonable in the circumstances: Caslake, at para. 19.

[113] In this case, P.C. McLean was adamant that he did not search the SUV to look for evidence. Given that the warrant was from October 2019, and Mr. Jean Louis’s arrest took place in July 2020, a search for evidence concerning the charge to which it related would have been entirely unreasonable. Instead, P.C. McLean testified that he decided to search the vehicle for weapons and documents that might further assist in identifying Mr. Jean Louis. However, these purposes for searching (and seizing Mr. El Khiraoui Chaki's satchel) were not objectively reasonable in the circumstances.

[114] Before commencing the search, P.C. McLean had no reason to believe that the SUV might contain anything that could endanger him or his partner or a member of the public. Moreover, by that point, the person under arrest, Mr. Jean Louis, had already been subject to a personal search, handcuffed, and confined in the rear of the police cruiser. As a result, he could not access anything in the vehicle that could pose a danger to the police or the public: see R. v. Santana, 2020 ONCA 365, 389 C.C.C. (3d) 79, at para. 31. Nor is there any suggestion that Mr. El Khiraoui Chaki had been acting in a manner that raised any safety concerns. On the contrary, P.C. McLean described him as cooperative throughout the investigation. In these circumstances, neither police nor public safety concerns could reasonably have justified searching the SUV.

[115] Further, I am also hard-pressed to understand what additional proof of Mr. Jean Louis's identity P.C. McLean was attempting to find by searching the vehicle. By the time of the arrest, Mr. Jean Louis had produced his Quebec driver's license, and the photo matched his appearance. He had also provided P.C. McLean with the rental agreement for the vehicle, which was in his name. Given all this, there could have been no real question concerning Mr. Jean Louis's identity, and it was unreasonable to search the vehicle for that purpose.

[116] Accordingly, for these reasons, the seizure of Mr. El Khiraoui Chaki's satchel was not authorized by law. Therefore, it violated his section 8 Charter right to be secure against unreasonable search or seizure.

3) Did Mr. El Khiraoui Chaki’s race influence, at least in part, how the investigation unfolded?

[117] Mr. El Khiraoui Chaki claims that a cumulative consideration of all the circumstances surrounding the investigation that morning furnishes an inescapable inference that the police's actions were motivated, at least in part, by the fact that he is Arab and Mr. Jean Louis is Black. In contrast, the Crown contests that the race of the two young men played any role in the actions of the two police officers during their brief investigation.

[118] Racial profiling occurs whenever "race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment": Le, at para. 76; see also R. v. Richards (1999), 26 C.R. (5th) 286 (Ont. C.A.), at para. 24; R. v. Brown (2003), 64 O.R. (3d) 161 (Ont. C.A.) [Brown 2003], at para. 7. It arises when race improperly [1] motivates or influences "to any degree, decisions by persons in authority regarding suspect selection or subject treatment": R. v. Dudhi, 2019 ONCA 665, 147 O.R. (3d) 546, at para. 55.

[119] It matters not that the police possessed objectively valid grounds for their actions if race or racial stereotypes also illegitimately influenced the exercise of their discretion. As the Court of Appeal explained in Dudhi, at para. 62:

... it is self-evident that a decision need not be motivated solely or even mainly on race or racial stereotypes to nevertheless be "based on" race or racial stereotypes. If illegitimate thinking about race or racial stereotypes factors into suspect selection or subject treatment, any pretence that the decision was reasonable is defeated. The decision will be contaminated by improper thinking and cannot satisfy the legal standards in place for suspect selection or subject treatment.

[Emphasis in original]

[120] By way of example, as Doherty J.A. observed, "a police officer who sees a vehicle speeding and decides to pull the vehicle over in part because of the driver's colour is engaged in racial profiling even though the speed of the vehicle could have justified the officer's action”: Peart v. Peel Regional Police Services Board (2006), 43 C.R. (6th) 175 (Ont. C.A.), at para. 91, leave to appeal refused [2007] S.C.C.A. No. 10.

[121] When police actions are infected by racial profiling and implicate constitutionally protected interests, like an individual's reasonable expectations of privacy under section 8 or their liberty under section 9, those Charter rights are necessarily violated. After all, it is difficult to imagine anything more unreasonable or arbitrary than the police consciously or subconsciously exercising their authority to detain, arrest, search, or seize, because of the influence – even in part – of pernicious racial stereotypes.

[122] Establishing a claim of racial profiling is no easy task. Its occurrence is virtually impossible to prove through direct evidence. After all, a police officer who consciously harbours racial biases will never admit as much. And those who are not overt racists are unlikely even to be aware of how subconscious racial biases may have influenced the exercise of their discretion. Nevertheless, courts must consider all the circumstances of the interaction to determine whether the encounter bears the hallmarks of racial profiling, as understood in the social science literature, the reports of inquiries into race relations with police, and the case law: see R. v. Sitladeen, 2021 ONCA 303, 155 O.R. (3d) 241, at para. 54; Peart, at paras. 95-96; Brown 2003, at paras. 44-45.

[123] With the governing principles summarized, I turn to the specific circumstances of this case.

[124] Not surprisingly, during cross-examination, both P.C. McLean and P.C. Gillespie denied any undue preoccupation with the race of the young men. Moreover, given the lighting conditions and the fogged windshield, they maintained that they could not even discern their race before approaching the driver's side of the SUV. Although I have doubts concerning their claims that they could only see the race of the two young men once they were standing next to the vehicle, absent contradictory evidence concerning the state of the windshield and the lighting conditions in the parking lot, it would be unreasonable to conclude that they lied about this. If I found they had, that would undoubtedly go some distance toward substantiating the claim of racial profiling: see Brown 2003, at para. 45.

[125] To be sure, in this case, there are some concerning hallmarks of racial profiling. To begin, the officers were not responding to a particular call. Instead, they were proactively policing the motel's parking lot, a known trouble spot, mainly looking for potential criminal activity. The nature of the license plate queries, which the officers acknowledged they would have conducted as they drove through the lot, demonstrates that. Additionally, their investigation of the two young men quickly transcended concerns about trespassing, purportedly their primary reason for approaching the vehicle. They almost immediately began exploring the possibility of criminal wrongdoing, as demonstrated by P.C. McLean's explanation for why he asked to see the car rental agreement.

[126] Further, the officers decided to arrest Mr. Jean Louis based on a warrant that, given their combined experience, they should have realized failed to provide them with such authority. Finally, once they carried out the arrest, they used the thinnest of pretexts to justify the seizure of Mr. El Khiraoui Chaki's satchel and to search the vehicle and both men's satchels.

[127] All these circumstances cause me to conclude that the officers were looking for some excuse to search the vehicle, including the men's satchels, to explore their suspicions that they might be involved in something unlawful. The question squarely before me is whether their suspicions were motivated, at least in part, by conscious or subconscious racial bias – in other words, whether their "inkling" that something was “not right” was in any way influenced by the race of the two young men.

[128] Based on all the evidence, although I have my suspicions that race may have improperly tainted the officers' actions, I am not satisfied, at least on a balance of probabilities, that it did. The more senior officer, P.C. McLean, took the lead on the morning in question. During his testimony, he referenced an earlier encounter at the same motel. He readily admitted conducting an investigative detention based on little more than his "Spidey sense" that something was "not right." However, there was no evidence that the person he dealt with on that earlier occasion was also racialized. Based on that and his actions on the morning in question, my more general impression is that P.C. McLean is an officer who consistently takes an overzealous approach when engaged in proactive policing.

[129] Although I have my suspicions that race may have improperly motivated the officers' actions, I think it more probable that events would have unfolded as they did even if the young men had been White. Ultimately, what seems most likely to have motivated the officers is that two young men were sitting in a rental car in the parking lot of a motel that was a known trouble spot for criminal activity shortly after 4:00 in the morning. On the whole of the record, I cannot find to the requisite standard that race played any role in the encounter.

[130] Accordingly, I must reject Mr. El Khiraoui Chaki's racial profiling claim.

4) Should the evidence be excluded under section 24(2) of the Charter?

[131] The police breached Mr. El Khiraoui Chaki's rights under sections 9, 10(a), 10(b) and 8 of the Charter.

[132] To remedy these violations, Mr. El Khiraoui Chaki seeks an order under section 24(2) to exclude from evidence the statements he made to the officers that morning, the handgun, and any testimony concerning its discovery.

[133] The Crown responds that in this case, the balance of considerations under section 24(2) of the Charter favours the admission of the evidence. In fairness to Mr. Raeesi, his submissions concerning section 24(2) were made, as they necessarily must be, without knowing what breaches the court might ultimately find.

[134] The starting point for determining whether to exclude evidence under section 24(2) is to decide whether it was "obtained in a manner" that violated the claimant's Charter rights: see Tim, at para. 78 (concisely summarizing the governing principles).

[135] That requirement is satisfied if there is a connection between the breaches and the evidence, which can be "temporal, contextual, causal or a combination of the three": R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21, quoting R. v. Plaha (2004), 189 O.A.C. 376 (C.A.), at para. 45.

[136] In this case, the breaches had a causal, temporal, and contextual connection to the evidence Mr. El Khiraoui Chaki seeks to exclude. Therefore, the police obtained the evidence in a manner that violated Mr. El Khiraoui Chaki's Charter rights and the evidence is eligible to be considered for exclusion under section 24(2).

[137] The decision of whether to exclude unconstitutionally obtained evidence under s. 24(2) of the Charter requires the court to consider "all the circumstances" of the case. To do so, the court must assess and balance the effect of admitting the evidence on the long-term repute of the administration of justice, having regard to the three lines of inquiry identified by the Supreme Court of Canada in Grant, at paras. 71, 85-86.

The seriousness of the Charter-infringing state conduct

[138] The first line of inquiry requires the court to assess the state conduct that led to the Charter violations and situate it along a "spectrum" or "scale of culpability": see Grant, at para. 74; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 43; Le, at para. 143; Tim, at para. 82. The Supreme Court of Canada provided a helpful summary of the considerations that should inform that assessment in Tim, at para. 82:

At the more serious end of the culpability scale are wilful or reckless disregard of Charter rights, a systemic pattern of Charter-infringing conduct, or a major departure from Charter standards. Courts should dissociate themselves from such conduct because it risks bringing the administration of justice into disrepute. At the less serious end of the culpability scale are Charter breaches that are inadvertent, technical, or minor, or which reflect an understandable mistake. Such circumstances minimally undermine public confidence in the rule of law, and thus dissociation is much less of a concern.

[139] When assessed with these considerations in mind, the Charter breaches, in this case, deserve placement at the most blameworthy end of the scale.

[140] As explained above, I am satisfied the officers took an overzealous approach throughout their interaction with Mr. El Khiraoui Chaki and Mr. Jean Louis on the morning in question. They quickly and unjustifiably escalated what should have remained no more than a brief check to ensure the young men were not trespassers or in need of assistance into an invasive criminal investigation. Ultimately, the officers used the pretext of an arrest warrant from Quebec, which they should have known gave them no authority to arrest in this province, to obtain the opportunity to search the vehicle and the young men's belongings to explore their unsubstantiated suspicions that they might be involved in something criminal because they were in a rental vehicle. As such, these were extraordinarily egregious Charter breaches.

[141] That conclusion strongly counsels in favour of exclusion. As the Supreme Court explained in Grant, the more "severe or deliberate" the police conduct that resulted in a Charter violation, "the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law": at para. 72.

The impact of the breaches on Mr. El Khiraoui Chaki's Charter-protected interests

[142] Under this line of inquiry, the court must evaluate the extent to which the Charter breaches "actually undermined the interests protected by the right infringed": Grant, at para. 76.

[143] In undertaking that assessment, the court must "look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests": Grant, at para. 77. It must situate the impacts along a spectrum, which may vary from "fleeting, technical, transient, or trivial, to those that are profoundly intrusive or that seriously compromise the interests underlying the rights infringed": Tim, at para. 90; see also Grant, at para. 76.

[144] The more impactful the breach is on the constitutionally protected interest, "the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute": Grant, at para. 76.

[145] The section 9 Charter breach significantly impacted Mr. El Khiraoui Chaki's liberty interests, cutting to the heart of what that constitutional guarantee aims to protect. Although the intrusion was brief, it was completely unjustified, which only heightened its impact: see Le, at para. 155.

[146] The sections 10(a) and 10(b) breaches also impacted the interests those rights serve to protect. The officers did not tell Mr. El Khiraoui Chaki the real reason for his detention (that they were exploring their unsubstantiated hunch of possible criminal wrongdoing). Instead, uninformed of his potential jeopardy, Mr. El Khiraoui Chaki made statements that directly tied him to the satchel containing the loaded handgun. That said, the potential impact of his incriminating statements is lessened somewhat by the existence of other evidence that overwhelmingly establishes that the gun belonged to him. After all, the officers saw him wearing the satchel, and his passport was in it.

[147] Finally, the seizure and subsequent search of Mr. El Khiraoui Chaki's satchel meaningfully impacted the interests section 8 of the Charter is intended to safeguard; his reasonable expectations of privacy: Hunter, at pp. 159-60. He had a high expectation of privacy in the contents of his satchel, which was significantly intruded upon by the seizure and search conducted by the police.

[148] As a result, the impact of the breaches on Mr. El Khiraoui Chaki's Charter-protected interests also strongly favours a finding that admission of the evidence, in this case, would bring the administration of justice into disrepute.

Society's interest in the adjudication of the case on the merits

[149] Under the third and final line of inquiry, the court must consider society's interest in adjudicating this case on its merits. That requires the court to assess whether it would better serve "the truth-seeking function of the criminal trial process" to admit or exclude the evidence: see Grant, at para. 79.

[150] The reliability of the impugned evidence and its importance to the prosecution's case are essential factors to be considered at this stage of the analysis: see Grant, at paras. 81, 83.

[151] The handgun, coupled with its discovery by police in Mr. El Khiraoui Chaki's satchel, is entirely reliable evidence: see Grant, at para. 81. Further, excluding this evidence will unquestionably deal a fatal blow to this prosecution: see Grant, at para. 83. These considerations count heavily in favour of admitting the evidence. Nevertheless, the court must weigh them against the factors pointing toward exclusion.

The final balancing

[152] After considering the three lines of inquiry identified in Grant, which encapsulate "all the circumstances" of the case, the court must decide whether, on balance, the admission of the evidence obtained in violation of the Charter would bring the administration of justice into disrepute: see Grant, at paras. 85-86. This balancing exercise invariably requires a qualitative assessment that does not lend itself to "mathematical precision": Grant, at para. 140.

[153] In this case, the gravity of the state misconduct occasioning the Charter breaches strongly favours exclusion. As does the fact that the breaches had a significant impact on the Charter-protected interests that sections 8, 9, 10(a) and 10(b) are meant to protect. In contrast, the third line of inquiry weighs in favour of admitting the evidence.

[154] The first two lines of inquiry do not need both to favour exclusion for a court to conclude that the admission of the evidence would bring the administration of justice into disrepute. "It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion": Le, at para. 141. Nevertheless, as they do here, when "the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility": Le, at para. 142.

[155] In balancing all the circumstances, I am mindful that illegal handguns are a matter of extraordinary public concern. As recent experience demonstrates, they pose a grave threat to public safety. The news is replete with troublesome stories of the life-altering injuries, deaths, and endless suffering these implements of human destruction in the hands of criminals cause in our community. To be sure, Canadians are entitled to be safe and secure from gun violence and to feel that they are.

[156] However, our desire to rid the community of handguns and the carnage they occasion cannot permit us to tolerate the police running roughshod over our most valued rights and freedoms. We cannot purchase our safety at the cost of our cherished liberties. If we were to permit that and turn a blind eye to constitutional excesses by the police that happen to assist in achieving the laudable goal of taking illegal handguns off the street, we would merely trade one threat to our safety and security for another more ominous one.

[157] Ultimately, what primarily drove this unjustified intrusion on the Charter-protected interests of the two racialized young men, in this case, was that they were sitting in a rental vehicle shortly after 4:00 in the morning in the parking lot of a motel. For these officers, their experience with criminals using rental cars to conceal their identities from police was enough to ignore the constitutional limits on their investigative powers to explore their unsubstantiated suspicions. That is very troubling.

[158] After all, law-abiding people routinely drive rental cars, especially when travelling, and they also regularly stay at motels. Although this motel was known to police as a trouble spot for criminal activities, it was also immediately adjacent to Highway 401, one of the busiest highways in the country used by local commuters and those from other provinces visiting or travelling through the Greater Toronto Area.

[159] To be sure, those travelling long distances routinely arrive at and depart from motels and hotels at all hours of the day. In a free and democratic country like Canada, they should be able to expect that when they do so, they will not be subject to unjustified police intrusions on their constitutional rights because criminals, just like everyone else, also happen to drive rental cars.

[160] Considering and balancing all the circumstances in this case, an order excluding the evidence is most appropriate. By excluding the evidence, the court dissociates itself from gravely serious police misconduct. At the same time, it reinforces the community's commitment to the individual rights guaranteed by the Charter: see R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 83; Paterson, at para. 56. Although this outcome permits someone guilty of rather serious crimes to escape responsibility, it better helps to ensure the constitutional rights of everyone, which is undoubtedly in the best interests of the administration of justice in the long term.

Conclusion

[161] For these reasons, the court grants the application and excludes from evidence Mr. El Khiraoui Chaki's statements, the handgun, and testimony concerning its discovery by the police.

Signed: “Justice J. Stribopoulos” Released: March 6, 2023

[1] It is undoubtedly appropriate to rely on an individual’s race when witnesses provide a racially specific description of a suspect.