Court File and Parties

COURT FILE NO.: CR-21-50000220-0000 DATE: 20230309

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – FAISAL FAREED Defendant/Applicant

COUNSEL: P. Zambonini, for the Crown/Responding Party K. Schofield and R. Singh, for the Defendant/Applicant

HEARD: February 7 and 8, 2023

MOLLOY J.:

REASONS FOR DECISION

A. Introduction

[1] Faisal Fareed is charged with multiple offences related to possession of a loaded Glock 23 handgun at approximately 7:45 a.m. on August 10, 2019. At the time of his arrest, he was seated in the driver’s seat of a parked car in which the police found the handgun.

[2] The defence brought an application to exclude the gun from evidence based on alleged breaches of Mr. Fareed’s rights under ss. 8, 9, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms. Mr. Fareed elected to be tried before me without a jury and the matter proceeded as a blended voir dire and trial. The Crown called the two police officers who were first on scene and several Agreed Statements of Fact were filed. The Crown then closed its case. The defence sought a ruling as to the admissibility of the gun before deciding whether to call evidence. I heard argument on the Charter issues and reserved my decision overnight. The following morning, I delivered my ruling finding the gun to be admissible in evidence. I provided a brief summary of my conclusions and advised that written reasons would follow.

[3] By way of summary, I found that Mr. Fareed had been detained when the first officer on scene opened the car door and ordered him to get out. However, I found that detention to be lawful. I also found that the there was no unlawful search or seizure of the handgun, which was in plain view in an open satchel between the feet of the accused. There was some acceptable delay in advising Mr. Fareed of the grounds for his detention, although it would have been known to him as the arresting officer yelled “Gun! Gun! Gun!” when he saw the handgun and immediately ordered Mr. Fareed out of the car at gunpoint. There was also some delay in formally telling Mr. Fareed that he was under arrest and advising him of his right to counsel. I found that the failure of the officers on scene to provide Mr. Fareed with a phone so he could call his lawyer from the scene was reasonable and did not breach the Charter. However, there was an unacceptable delay in the implementation of Mr. Fareed’s right to speak to a lawyer, in breach of s. 10(b). The 10(b) breaches include: time when Mr. Fareed was kept at the scene, sitting on the lawn, handcuffed, in full view of passersby; insufficient attempts at the police station to contact the Ottawa lawyer to whom he asked to speak; putting him in touch with duty counsel within minutes of the failed attempt to reach counsel of choice without any further discussion with him; and unreasonable delay in facilitating his ability to reach a second lawyer of choice. Finally, I expressed considerable concern about the failure of the police to file any report with a justice of the peace with respect to the items seized, which I characterized as a breach of s. 8 of the Charter. Notwithstanding those breaches, I found the evidence to be admissible under s. 24(2) of the Charter, after applying the principles established in R. v. Grant, 2009 SCC 32.

[4] My detailed reasons are set out below.

B. Issues

[5] The Charter violations alleged by the defence are as follows:

(i) unlawful detention, when P.C. Edward O’Toole opened the driver door of the car where Mr. Fareed was sitting and ordered him out of the car, in violation of s. 9;

(ii) unlawful search of the vehicle, and in particular of the Gucci satchel in the vehicle, where the handgun was found, in violation of s. 8;

(iii) failure to advise Mr. Fareed of the grounds for his detention and his right to counsel in a timely way, in violation of s. 10(a);

(iv) failure to implement Mr. Fareed’s right to counsel in a timely way after he stated that he wished to speak to his lawyer, Richard Addelman, in violation of s. 10(b);

(v) conducting a strip search of Mr. Fareed at the police station prior to giving him an opportunity to speak to his lawyer, in violation of s. 10(b); and,

(vi) failure to make a report to a justice of the peace with respect to the property seized and retained, as required under s. 489.1(1)(b) of the Criminal Code.

[6] With respect to the implementational component of the right to counsel, the alleged breaches can be broken down further, as follows:

(i) delay from when Mr. Fareed was advised of his right to counsel at 8:35 a.m., and said he wanted to speak to counsel, to the time he is placed in the cruiser for transport to the police station at 9:40 a.m.;

(ii) delay from when Mr. Fareed is placed in the cruiser to when P.C. O’Toole placed the call to Mr. Addelman;

(iii) inadequate efforts to reach Mr. Addelman;

(iv) transferring Mr. Fareed to duty counsel without asking if he agreed to speak to duty counsel or if he had another lawyer he wanted to contact;

(v) delay in implementing opportunities to speak to an alternate lawyer of his choice, until 5:37 p.m.

D. Background Facts

[7] On August 10, 2019, P.C. O’Toole and P.C. Lydia Cesar were on the day shift as part of the Primary Response Unit at 22 Division of the Toronto Police Service (“TPS”). They were in uniform and each had an assigned police cruiser, but were working in tandem whenever possible. They started their shift with morning coffee at a bakery in their patrol area. At 7:31 a.m., they received a call from dispatch. A concerned resident of a home on Burma Drive had called 911 and reported that a party had been going on throughout the night and early morning hours at an Airbnb at 16 Burma Drive. People were seen drinking outside the residence, including on the street. People were also seen leaving the party and getting into cars. The caller provided the license plate of a black Chevy SUV parked in front of the Airbnb, with partygoers getting in and out of it. The caller expressed concerns about possible impaired driving.

[8] P.C. O’Toole considered this to be a very routine call. He suggested to his partner that she stay and finish her coffee while he attended to the call alone and made sure nobody drove the car while impaired. However, P.C. Cesar declined that offer and said she would come along. They drove to the scene in two separate police cruisers, with P.C. O’Toole in the lead. Believing this to be a routine call, neither of the officers activated their lights or sirens, which means that the cars’ front and interior cameras were also not operating. They arrived on scene at 7:46 a.m. and immediately saw the black Chevy parked in an improvised parking spot in front of 16 Burma Drive, with its nose pointed towards the house.

[9] When the officers arrived at the scene at 7:46 a.m., they saw four men inside the black Chevy and two men standing nearby on the lawn. P.C. O’Toole pulled up to the curb just before where the Chevy was parked, without blocking it. P. C. Cesar parked immediately behind him. They both got out of their cruisers. P.C. O’Toole headed straight for the driver’s door of the Chevy. Simultaneously, P.C. Cesar approached the two men who were standing on the lawn a short distance away from the Chevy, on the driver’s side.

E. Discovery and Seizure of the Gun

[10] Mr. Fareed was sitting in the driver’s seat. It was a sunny morning in August. All the Chevy’s windows were down. P.C. O’Toole testified that as he approached the car, he made eye contact with Mr. Fareed, and that Mr. Fareed quickly turned his torso to the right, with his arms down, and his back to the window. It looked to P.C. O’Toole as if he was trying to hide something. He described being “heightened” by this, or at an increased state of apprehension. P.C. O’Toole ran towards the car and said words to the effect of, “What are you doing? What are you trying to hide?” He testified that Mr. Fareed then turned to him, showed that he had a partially rolled marijuana joint in his palm, and said, “It’s just a blunt.” P.C. O’Toole said he felt relieved to know that it was just marijuana, and said something about that to Mr. Fareed. P.C. O’Toole then opened the door of the car and ordered Mr. Fareed to get out.

[11] In my opinion, there is no question that as of that point in time, Mr. Fareed was under detention. However, there is an issue as to whether it was a lawful detention, a point to which I will return. For purposes of s. 9 of the Charter, a person is detained if his liberty interest is suspended “by a significant physical or psychological restraint.” In Grant, the Supreme Court of Canada held that “[p]sychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.” When a police officer approaches a vehicle, opens the door, and tells the driver to get out of the car, a reasonable person would believe he had no choice but to comply. Whether this is characterized as a physical or psychological detention does not matter for these purposes. I find that Mr. Fareed has discharged his onus of establishing that he was detained as soon as P.C. O’Toole opened the car door and told him to get out.

[12] Simultaneous to ordering Mr. Fareed out of the car, and while Mr. Fareed was still seated, P.C. O’Toole leaned a little into the car and could see an open black satchel sitting upright between Mr. Fareed’s feet, inside of which he could see what looked to him to be the butt end of a gun. He testified that he immediately reached forward and pulled on the side of the satchel, to have a closer look, at which point Mr. Fareed pulled on the other side of the satchel as if to move it away from the officer. P.C. O’Toole said that the gun was now fully visible. P.C. O’Toole yelled “Gun! Gun! Gun!” and seized the gun out of the satchel, while also drawing his own revolver with his right hand. He ordered Mr. Fareed and the other occupants of the car to get out of the vehicle and lie face down on the ground.

[13] P.C. O’Toole testified that it was only a matter of a few seconds from when he arrived at the door of the car and when he drew his revolver and yelled “Gun! Gun! Gun!” This is confirmed by the testimony of P.C. Cesar, who was only a few feet away with the two men who had been standing on the lawn. She said she had been looking directly at those two men and speaking with them while her partner was talking to the driver. She said P.C. O’Toole was in her “range of view,” even though she was not looking directly at him until her attention was drawn by him yelling out “Gun! Gun! Gun!” She testified that it was a matter of “several seconds” from when P.C. O’Toole was approaching the Chevy and when he shouted the warning about the gun. She said that his opening of the car door and shouting the gun warning were simultaneous, although she did not turn to look at him until he shouted “Gun! Gun! Gun!” At that point, she said all four occupants were still inside the car and that P.C. O’Toole then ordered them all to get out and lie on the ground. She drew her own firearm and ordered the two men she had been dealing with to also lie face down on the grass.

[14] P.C. O’Toole was examined and cross-examined about his intent in opening the car door and his actions in leaning inside the car and seeing the satchel with the gun. I am satisfied that he answered those questions honestly and, to the best of his ability, accurately. It must immediately be recognized that this was a fluid situation that lasted mere seconds and it would not be easy to pinpoint what thoughts were running through his mind at what precise time.

[15] However, I am satisfied on the evidence that P.C. O’Toole approached the Chevy with no concerns other than to prevent potential and imminent impaired driving. I find that this intention did not change when he saw the marijuana in Mr. Fareed’s hand. On the contrary, P.C. O’Toole testified that although he was not concerned about the possession of marijuana per se, and had no intention of arresting Mr. Fareed for that, he did not want him behind the wheel of a car. When asked if he had a concern about the marijuana, he stated, “No. I just didn’t want him driving, so that’s when I opened the door.” At another point in his cross-examination, when asked about his intention in opening the door, he stated, “He still has marijuana in his hand and he is in the driver seat. I don’t want him leaving.”

[16] At other points in his evidence, both in chief and in cross-examination, P.C. O’Toole also said that he was concerned that Mr. Fareed might be hiding something else and he wanted to see what it was. That is a natural concern in the circumstances and particularly in light of Mr. Fareed’s furtive movements just moments before. However, P.C. O’Toole was clear about his primary reason for opening the door and ordering Mr. Fareed out of the car. He said, “Number 1, he had marijuana on him and he shouldn’t be driving or in the driver’s seat and I tell him to get out of the vehicle.”

[17] P.C. O’Toole was clear that he did not notice the satchel at Mr. Fareed’s feet until after he had opened the door and was about to remove him from the car. He was checking the surroundings and said he leaned into the car a little bit (while Mr. Fareed was still sitting there) which is when he spotted the satchel. At that point, he could see what looked to be the butt of a handgun, although he was not 100% certain of that. It was only at that point that he reached for the satchel and pulled one side of it open, while Mr. Fareed did the same with the other side of the satchel. This caused the satchel to open wider and the gun became fully visible. P.C. O’Toole responded accordingly by drawing his revolver, yelling a warning, and ordering everyone out of the car.

[18] I find on the evidence that when P.C. O’Toole opened the door and told Mr. Fareed to get out, his intention was to investigate whether Mr. Fareed was in a fit state to operate a motor vehicle. He had reasonable grounds to be concerned based on the neighbour’s report to 911 about the party that had gone on all night, people consuming alcohol outside the house, and their concern that it looked as though the car was about to leave. This was compounded by discovering that Mr. Fareed was sitting behind the wheel rolling a marijuana joint. P.C. O’Toole had a reasonable basis to detain Mr. Fareed at that point to ensure that a criminal offence, with the potential of endangering the public, was not committed. Further, given that the vehicle could be put in motion at any time, it was completely reasonable for D.C. O’Toole to ask Mr. Fareed to step out of the vehicle, so that he could investigate his condition before allowing him to be back behind the wheel. The fact that P.C. O’Toole was also wary of other things that Mr. Fareed might have been hiding does not change the purpose of the investigative detention, nor the fact that the detention itself was lawful.

[19] P.C. O’Toole was cross-examined extensively about whether it would be impossible to see the butt of the gun inside the satchel without first holding it open. He was adamant that this was not the case. Defence counsel staged a “re-enactment” designed to demonstrate that the satchel was too flat to be held between the feet in a manner that would enable anyone to see inside. However, P.C. O’Toole showed what the satchel looked like when he saw it, and when it was placed in that position between two feet, I was able to see, from my position, above and to the side, the butt end of the gun. I accept P.C. O’Toole’s evidence that he saw the gun in the satchel as he was leaning forward in the process of removing Mr. Fareed from the vehicle.

[20] I also accept P.C. O’Toole’s evidence that he did not set out to search the vehicle, and had no intention of looking inside the satchel until he saw the butt of the handgun inside it. Further, I do not consider that the officer’s action in leaning slightly into the vehicle to look at Mr. Fareed’s immediate surroundings constituted an unlawful search given the circumstances, particularly Mr. Fareed’s earlier furtive actions that looked like he was hiding something that may or may not have been only a marijuana joint. When police have lawfully detained the driver of a vehicle and are removing him from the car, they are entitled to look inside the car for things that are in plain view and which could present a threat to officer safety. As stated by the Supreme Court of Canada in R. v. Mellenthin:

There can be no quarrel with the visual inspection of the car by police officers. At night the inspection can only be carried out with the aid of a flashlight and it is necessarily incidental to a check stop program carried out after dark. The inspection is essential for the protection of those on duty in the check stops. There have been more than enough incidents of violence to police officers when vehicles have been stopped. Nor can I place any particular significance upon the fact stressed by the appellant that the police only made use of a flashlight after the request had been made of the appellant to produce the necessary papers and not when the constable first approached the car. Although the safety of the police might make it preferable to use the flashlight at the earliest opportunity, it certainly can be utilized at any time as a necessary incident to the check stop routine.

[21] In this case, P.C. O’Toole leaned in slightly to look at the interior of the car in the area where Mr. Fareed was sitting before taking him out of the car. This was a prudent step for purposes of officer safety. Having seen what reasonably appeared to be the butt end of the gun in plain view next to Mr. Fareed’s feet, P.C. O’Toole was acting lawfully in examining the satchel further and then seizing the handgun, again for purposes of officer safety. In R. v. Jones, 2011 ONCA 632, the Ontario Court of Appeal summarized the authority of a police officer to seize evidence in plain view, even though such evidence might not be part of the original police activity and its discovery may have been inadvertent, as follows:

The “plain view” doctrine operates when a police or peace officer is in the process of executing a warrant or an otherwise lawfully authorized search with respect to one crime and evidence of another crime falls into plain view. Resort to this common law power is subject to the following restraints, however:

(i) The officer must be lawfully in the place where the search is being conducted (“lawfully positioned”, in the language of the authorities); [page258]

(ii) the nature of the evidence must be immediately apparent as constituting a criminal offence;

(iii) the evidence must have been discovered inadvertently;

(iv) the plain view doctrine confers a seizure power not a search power; it is limited to those items that are visible and does not permit an exploratory search to find other evidence of other crimes.

See, generally, R. v. Spindloe, 2001 SKCA 58, [2001] S.J. No. 266, 154 C.C.C. (3d) 8 (C.A.), at pp. 29-37 C.C.C.; R. v. F. (L.), [2002] O.J. No. 2604, 166 C.C.C. (3d) 97 (C.A.), at paras. 28-34; Law, supra, at para. 27, and the authorities cited therein.

[22] In these circumstances, I find all requirements are met. P.C. O’Toole had lawfully detained Mr. Fareed. The presence of the handgun constituted an offence that was readily apparent, as well as being an obvious threat to officer safety. It was in plain view and was found inadvertently, not because of an improper search.

[23] Accordingly, I find no breach of ss. 9 or 8 of the Charter in connection with P.C. O’Toole opening the car door, ordering Mr. Fareed out of the car, looking into the car, and seizing the handgun from the satchel.

F. Grounds for Detention/Arrest and Rights to Counsel: Section 10(a) and 10(b) Informational

[24] Mr. Fareed complied with P.C. O’Toole’s direction that he get out of the car and lie face-down on the grass with his arms extended. The other three passengers in the car also complied, as did the two men previously standing on the lawn with whom P.C. Cesar had been engaged. P.C. Cesar also had her weapon drawn. At this point, there are four men on the ground on the driver’s side of the black Chevy and two men on the other side of the Chevy (who had previously been in the front passenger seat and the rear seat behind it). The two men on the far side of the car were briefly out of sight, but P.C. O’Toole went to that side and brought those two men over to the driver’s side of the car. There were now six men lying prone on the ground and two officers standing over them with their weapons drawn. One of the two officers called for backup. The first additional officers arrived at 7:48 a.m., and the process of handcuffing and identifying all six detainees began.

[25] Meanwhile, superior officers and officers from the Major Crime Unit were summoned to the scene. There were three people inside the Airbnb who needed to be dealt with. The owners of the Airbnb were notified and arrived. They wanted to have the house cleared. The three people in the house were removed and briefly detained. P.C. Cesar contacted the Canine Unit to have an officer come with a gun-sniffing dog. The house was then searched and cleared. Decisions needed to be made about which of the nine people now detained would be released and which would be arrested. In short, a lot was happening.

[26] At 8:35 a.m., P.C. O’Toole brought Mr. Fareed to the side of his police cruiser. He activated the in-car camera. The interaction between the officer and Mr. Fareed can be heard on the video recording, but not seen. P.C. O’Toole told Mr. Fareed that he was under arrest for possession of an illegal firearm and advised him of his right to counsel. Mr. Fareed indicated that he understood and that he wanted to contact a lawyer, Richard Addelman, who practiced in Ottawa. P.C. O’Toole told Mr. Fareed that a call would be placed to his lawyer when they got to the police station, and then returned Mr. Fareed to the front lawn of the Airbnb, where he continued to wait with the other five men detained, all of them still in handcuffs.

[27] Sections 10(a) and 10(b) of the Charter state: “[e]veryone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right”.

[28] The requirement under s. 10(a) relates to a person being told promptly of the reasons for his arrest or detention. In this context, the word “promptly” has consistently been interpreted to mean “immediately.” See Regina v. Kelly (1985), 17 C.C.C. (3d) 419 (Ont. C.A.), at p. 424; R. v. Nguyen, 2008 ONCA 49, 231 C.C.C. (3d) 541, at para. 20. However, the surrounding circumstances must be taken into account, including the safety of the officers involved. See R. v. Patrick, 2017 BCCA 57, 344 C.C.C. (3d) 137, at paras. 111-13, leave to appeal to refused [2017] S.C.C.A. No. 37514; R. v. Larocque, 2018 ONSC 6475, at para. 41.

[29] The rights under s. 10(b) have two components: the first is informational (the right to be told on arrest or detention that you have a right to counsel); the second is implementational (the right to retain and instruct counsel “without delay” after an arrest or detention).

[30] When Mr. Fareed was formally arrested at the side of the cruiser, he was immediately told that the arrest was for possession of an illegal firearm. That information is compliant with the Charter. However, Mr. Fareed also had the right to be told “promptly” why he was being detained.

[31] There is no evidence that Mr. Fareed was ever officially told the grounds upon which he was detained, nor was he told about his right to counsel until he was formally arrested at 8:35 a.m.

[32] I have ruled that the detention started at the point where P.C. O’Toole opened the car door and told Mr. Fareed to step out. The intention of the officer at that point was to investigate Mr. Fareed to determine if he was in a state of intoxication and not fit to drive. However, before Mr. Fareed was even out of the driver’s seat the officer saw the firearm. This was virtually simultaneous with the detention and created an emergency situation in which the safety of these two officers was paramount. P.C. O’Toole had no time to tell Mr. Fareed he was being detained with respect to a concern about his possible intoxication and whether he was fit to drive. Before those words could be uttered, Mr. Fareed was being detained for possession of the firearm. Given the urgency of the situation, P.C. O’Toole and P.C. Cesar ordered all six men to lie prone on the lawn with their hands raised and guarded them at gunpoint until backup officers arrived. This was perfectly reasonable for officer safety. There was no opportunity at that point to advise anyone of the grounds for their detention, nor their rights to counsel.

[33] I do note, however, that P.C. O’Toole grabbed the firearm out of the satchel between Mr. Fareed’s legs right in front of Mr. Fareed and yelled “Gun! Gun! Gun!” while ordering Mr. Fareed out of the car and to the ground at gunpoint. Notwithstanding that P.C. O’Toole did not formally tell Mr. Fareed that he was being detained with respect to the firearm found in the car, Mr. Fareed was well aware of that fact.

[34] I have no difficulty with some delay in advising Mr. Fareed of his right to counsel following his detention. The six men detained needed to be controlled and handcuffed, and the scene made secure. However, there was an approximately 45-minute delay from when Mr. Fareed was initially detained to when he was advised of his right to counsel. That is not “promptly” nor “immediately” and is a breach of s. 10(a) of the Charter. No doubt P.C. O’Toole was attending to other matters during this time, but I heard no evidence of anything so pressing that he was unable to advise Mr. Fareed of his Charter rights in a more timely way.

G. Implementation of Right to Counsel: Section 10(b)

Failure to Provide Access to Counsel at the Scene: Not a Breach

[35] When Mr. Fareed was advised of his right to counsel at 8:35 a.m., he immediately said he wanted to speak to his lawyer, Richard Addelman, who practiced in Ottawa. He was then returned to the lawn, still handcuffed, where he waited to be taken to the police station. P.C. O’Toole testified that he did not consider it possible to arrange for Mr. Fareed to speak to his lawyer while still at the scene. I do not find this to be a breach of s. 10(b). There was no phone available, and no ability for Mr. Fareed to speak to a lawyer with any degree of privacy. The scene was chaotic with multiple people being detained, officers coming and going, the owners of the Airbnb arriving on scene, the canine unit brought in to search the house, to name a few. To exercise a meaningful right of consultation with counsel, an accused or detainee would need a telephone and sufficient privacy to protect the confidentiality of any communications. Neither was available at the scene here. The Supreme Court of Canada held in R. v. Taylor, 2014 SCC 50 that police officers are under no duty to provide their own cellphones to an accused for this purpose. The difficulty in permitting an accused to have unrestricted and unsupervised access to his own phone is also readily apparent. There were nine people under detention at this location, all of them being held outside the house. There were officers coming and going, and also civilians in the area. It was simply not feasible to provide Mr. Fareed with access to his counsel of choice at the scene. I find no s. 10(b) breach as a result of Mr. Fareed’s inability to speak to counsel prior to being transported to the police station. I also note that no officer questioned Mr. Fareed in any way while he was waiting to be transported, or during the drive to the police station.

Delay in Taking Mr. Fareed to the Police Station: Breach of s. 10(b)

[36] It was not until 9:40 a.m. that P.C. O’Toole placed Mr. Fareed in his cruiser and headed for the 11 Division police station. It may have been reasonable to wait until Mr. Fareed was at the police station to assist him to contact his lawyer, but there was no evidence to explain the approximately one-hour delay from when Mr. Fareed gave the officer his lawyer’s name and the first steps taken to implement his right to speak to a lawyer by taking him to the station.

[37] P.C. O’Toole testified that there was nobody available to take Mr. Fareed to the station. I do not accept that evidence as plausible. For one thing, there was nothing in particular that P.C. O’Toole was doing that could not have been done by any other officer on scene (apart from his initial steps in providing his supervisor with information as to what had happened). I find that there was a s. 10(b) breach for a significant portion of the one-hour period from when Mr. Fareed said he wanted to speak to a lawyer to when he was put in the police car to go to the police station. In my view, this is an unreasonable delay that has not been adequately explained.

Travel Time, Processing and Strip-Search at the Station

[38] The period of time it took to get to the police station and to wait for access to the booking hall, as well as the time to process Mr. Fareed upon his arrival at the station, do not raise any Charter issues. These things take time, and time here was not unreasonably wasted.

[39] After completion of the booking procedure, the officers sought, and were granted, permission to conduct a strip search. Their stated concern was the possibility of drugs being on Mr. Fareed’s person given that he was rolling a marijuana cigarette when he was first detained and had pending drug charges in another jurisdiction. He was arrested for possession of a loaded firearm. He was clearly going to be detained in custody. Very little time was spent on this issue in the application before me. In all the circumstances, and given the paucity of evidence on the point, I am not prepared to find that the search itself violated Mr. Fareed’s s. 8 Charter rights. However, the search was done before he had been given an opportunity to speak to counsel. I do note that there may be an important reason to have an opportunity to speak to a lawyer prior to such a search being conducted, as noted by Bawden J. in R. v. Tonkin, 2020 ONSC 5206. I should not be taken as saying that it is never a breach of s. 10(b) to do a strip-search before an accused has had an opportunity to speak to a lawyer. However, given the absence of evidence with respect to there being anything improper in carrying out the search, the brief nature of the search, and the absence of anything flowing from it, I find that if there was a s. 10(b) breach, it was very minor in nature.

Failure to Put Mr. Fareed in Touch with Counsel of Choice: s. 10(b) Breach

[40] At 10:40 a.m., upon completion of the booking procedure and search, Mr. Fareed was placed in an interview room and P.C. O’Toole immediately took steps to locate his counsel of choice, Richard Addelman. Mr. Fareed did not have his lawyer’s contact information but P.C. O’Toole did a search and located the number. He called that number at 11:09 a.m., but got an answering machine. He left a detailed message about the circumstances. At 11:11 a.m., P.C. O’Toole placed a call to duty counsel and arranged for duty counsel to speak to Mr. Fareed. He did not wait any more than two minutes for a return call from Mr. Addelman before doing that, nor did he attempt to reach Mr. Addelman in any other way (such as email, or contacting another lawyer in the firm). Importantly, P.C. O’Toole had no discussion with Mr. Fareed about whether he was content to speak to duty counsel, nor did he ask him if he had a second choice if Mr. Addelman failed to respond. P.C. O’Toole’s explanation was that he left this to the officers at 11 Division, where Mr. Fareed was being held, as he had to return to 22 Division (where he was based). At that time, 22 Division did not have cells in which to hold prisoners, and used the facilities at 11 Division for that purpose. It does not matter which officer was responsible for having this discussion with Mr. Fareed, whether it be P.C. O’Toole or some other officer at 11 Division. The point is that some officer should have spoken to Mr. Fareed about it before simply passing him over to duty counsel.

[41] Mr. Fareed refused to speak to the duty counsel he was initially put through to just after 11:11 a.m., because he wanted to speak to his counsel of choice. He was absolutely justified in taking that position. The right to consult counsel under s. 10(b) of the Charter, includes the right to speak to counsel chosen by the accused or detainee. The Supreme Court of Canada held in R. v. Williers, 2010 SCC 37:

Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation: Black. If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended: R. v. Ross, [1989] 1 S.C.R. 3; and Black.

[42] Subsequently, at approximately 12:08 p.m., Mr. Fareed did speak to duty counsel. Later that afternoon, at 5:14 p.m., another officer (Officer Thompson) placed a call to Mr. Fareed’s mother, and through her eventually obtained the name of a Toronto lawyer (Rob MacDonald) to speak to Mr. Fareed. Officer Thompson then placed a call to Mr. MacDonald at 5:37 p.m., and transferred the call to Mr. Fareed, which was Mr. Fareed’s first opportunity to speak to counsel of his choice. There was no evidence before me as to the circumstances of the consultation with duty counsel at around noon, nor what precipitated Mr. Fareed’s request to call his mother, nor what interactions the police had with Mr. Fareed during this time.

[43] I find that the TPS violated Mr. Fareed’s rights under s. 10(b) of the Charter by failing to implement his right to speak to a lawyer of his choice without delay. Not all the delay between the point of detention at 7:48 a.m. to 5:37 p.m. constitutes delay for purposes of the s. 10(b) analysis. The practicalities of the circumstances must be taken into account. I have already ruled that it was not feasible to arrange a telephone consultation with counsel at the scene. I would also exclude the travel time to the station and the time required for booking. However, no adequate explanation was provided for about an hour from when Mr. Fareed was placed under arrest and when the trip to the station started. It was particularly important to transport Mr. Fareed to the station promptly, given that he had said he wanted to speak to a lawyer and that right was suspended until he got to the police station, circumstances entirely under the control of the police.

[44] I find that P.C. O’Toole acted promptly in locating contact information for Mr. Addelman and placing a call to him soon after he had transferred Mr. Fareed to the interview room. However, from there, the ball got dropped. Merely leaving a message for the accused’s lawyer of choice does not terminate the obligation of the police to make reasonable efforts to put the accused in contact with his lawyer. In this case, there are a number of things P.C. O’Toole could easily have done to follow up with Mr. Addelman and his failure to do so was negligent. Further, the fact that P.C. O’Toole called duty counsel a mere two minutes after leaving the message for Mr. Addelman demonstrates his lack of serious attention to the right of an accused to speak to his own lawyer, not just any lawyer who happens to be serving as duty counsel that day. Likewise, it was not acceptable for P.C. O’Toole to place the call to duty counsel without first discussing with Mr. Fareed what his options were if it proved to be impossible to contact his counsel in Ottawa. Needless to say, waiting two minutes after leaving a message and making no other efforts to contact Mr. Addelman would not support a conclusion that Mr. Addelman could not be reached. It is not surprising that Mr. Fareed at that point chose not to speak to duty counsel. Eventually, about an hour later, with Mr. Addelman not having responded during that time, Mr. Fareed apparently changed his mind and elected to speak to duty counsel. That goes some distance to mitigating the negligence of the police, but does not excuse the original failure to make meaningful attempts to contact the lawyer requested. That oversight was not fully corrected until the police contacted Mr. Fareed’s mother to get the name of alternate counsel.

[45] The Supreme Court of Canada held in Taylor that where an accused has stated he wants to speak to a lawyer and there is a delay in implementing that right, the “burden is on the Crown to show that a given delay was reasonable in the circumstances.” Abella J. held that “[c]onstitutional rights cannot be displaced by assumptions of impracticality. Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel.”

[46] There was virtually no evidence with respect to the circumstances surrounding Mr. Fareed’s conversation with duty counsel at around noon, nor the delay from then until 5:00 p.m. when the call was placed to his mother, nor any communications with Mr. Fareed about getting a name for alternate counsel during that time. There can be no assumption that such delays were reasonable; it is for the Crown to establish that they were. I find that the Crown has failed to discharge its onus of proving that the delay in implementing Mr. Fareed’s rights to counsel were reasonable, both with respect to the one-hour delay at the scene and the approximately six-hour delay at the station in facilitating Mr. Fareed’s ability to speak to a lawyer of his choice. This constituted a breach of his rights under s. 10(b) of the Charter.

[47] No police officer elicited or obtained any statement from Mr. Fareed during the entire time between when he was first detained at 7:48 a.m. and when he finally spoke to his lawyer of choice at 5:37 p.m., more than nine hours later. That does not excuse or mitigate the s. 10(b) breach, but may have an impact on the s. 24(2) analysis.

H. Failure to File Report to Justice of the Peace

Legal Principles

[48] The police seized the firearm and the satchel it was in without a warrant. As I have already held, that seizure was lawful and did not breach of Mr. Fareed’s Charter rights. However, s. 8 of the Charter, which guarantees the right to be free from “unreasonable search and seizure,” extends beyond the initial seizure of an item. The protection of s. 8 remains in place for the entire time that item remains in police custody. As stated by LaForest J. in R. v. Colarusso:

In considering this position, it must be understood that the protection against unreasonable seizure is not addressed to the mere fact of taking. Indeed, in many cases, this is the lesser evil. Protection aimed solely at the physical act of taking would undoubtedly protect things, but would play a limited role in protecting the privacy of the individual which is what s. 8 is aimed at, and that provision, Hunter tells us, must be liberally and purposively interpreted to accomplish that end. The matter seized thus remains under the protective mantle of s. 8 so long as the seizure continues.

[49] After seizing property, whether with or without a warrant, the police have an obligation under s. 489.1 to make a report to a justice of the peace “as soon as is practicable”. This duty is set out in s. 489.1(a) and (b) as follows:

489.1 (1) Subject to this or any other Act of Parliament, if a peace officer has seized anything under a warrant issued under this Act, under section 487.11 or 489, or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable,

(a) return the thing seized, on being issued a receipt for it, to the person lawfully entitled to its possession and report to a justice having jurisdiction in respect of the matter and, in the case of a warrant, jurisdiction in the province in which the warrant was issued, if the peace officer is satisfied that

(i) there is no dispute as to who is lawfully entitled to possession of the thing seized, and

(ii) the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or

(b) bring the thing seized before a justice referred to in paragraph (a), or report to the justice that the thing has been seized and is being detained, to be dealt with in accordance with subsection 490(1), if the peace officer is not satisfied as described in subparagraphs (a)(i) and (ii).

[50] In R. v. Backhouse (2005), 194 C.C.C. (3d) 1 (Ont. C.A.), the Ontario Court of Appeal reviewed the history and intent of s. 489.1 of the Criminal Code (and related provisions) and held that it “is part of a scheme to protect property and privacy interests”, “reflects Charter values and principles”, and “favours judicial supervision.” The court further held that a failure to make a report under s. 489.1 rendered the continued detention of seized material unlawful, regardless of whether the initial seizure was lawful.

[51] Subsequently, in R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737, the Court of Appeal confirmed those principles and further held that a failure to comply with the reporting provisions of s. 489.1 constitutes a breach of s. 8 of the Charter. More recently, in 2018, Fairburn J.A., for the Ontario Court of Appeal again confirmed these principles, emphasizing that filing a report under s. 489.1 must not be “conceptualized as a meaningless exercise in paperwork”:

Section 489.1(1) applies to seizures made both with and without prior judicial authorization: Backhouse, at para. 111. The provision fulfills an important purpose, providing the gateway to s. 490 of the Criminal Code: R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737, at paras. 15, 55; Backhouse, at para. 112. Section 489.1 should not be conceptualized as a meaningless exercise in paperwork. Filing the initial report under s. 489.1(1) is the act that places the property within the purview of judicial oversight. It provides for a measure of police accountability when dealing with property seized pursuant to an exercise of police powers. This provides an important measure of protection to the party who is lawfully entitled to the property, but also provides a measure of protection to the police who become the custodians responsible for the property seized. Allowing for this type of oversight is particularly important in the wake of warrantless seizures, ones where no prior authorization has been given, meaning the seizures are beyond the knowledge of the judicial system. (R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 45).

Police Failure to Report in this Case: Breach of s. 8 of the Charter

[52] In this case, the police failed to file any report to the justice of the peace after seizing the firearm and satchel. Their failure to do so was specifically drawn to their attention when defence counsel sought production of the report as part of the Stinchcombe disclosure process, and again at the preliminary hearing, and again when this application was brought. Even then, they did not file a report. As of the date of the argument of this matter before me, based in part on this breach, the report still had not been made. The seizure was made on August 10, 2019. The firearm has been unlawfully in police custody for approximately three and a half years.

[53] As has been noted in many cases, the term “as soon as is practicable” is a flexible one. Determining whether a report has been made as soon as is practicable is fact specific and will depend on the circumstances of each case. See Canary, at para. 47. Important factors could include the volume of items seized, the complexity of the case, other demands on the officers’ time, and any reasons given for the delay or failure to file.

[54] None of those factors apply here. There can be no excuse for an ongoing failure to file a report mandated by the Criminal Code and by s. 8 of the Charter for a period of over three years, and indeed, none was offered.

[55] This is a clear breach of s. 8 of the Charter.

I. Admissibility of the Evidence: Section 24(2)

[56] I have found the following breaches of Mr. Fareed’s Charter rights:

(i) delay of approximately 45 minutes in advising Mr. Fareed of the grounds for his detention, in breach of s. 9;

(ii) delay of one hour from when Mr. Fareed invoked his right to speak to counsel and when the first steps were taken to implement that right, in breach of s. 10(b);

(iii) possible further breach of s. 10(b) by conducting strip search before giving Mr. Fareed the right to speak to counsel;

(iv) ineffective steps by P.C. O’Toole to put Mr. Fareed in touch with counsel of his choice before he was transferred to duty counsel, in breach of s. 10(b);

(v) further delay until approximately 5:00 p.m. in implementing Mr. Fareed’s right to speak to counsel of his choice, in breach of s. 10(b);

(vi) failure to file a report to the justice of the peace with respect to the items seized, particularly the firearm, in breach of s. 8.

General Principles

[57] The defence applied under s. 24(2) of the Charter to have the firearm excluded from evidence at trial because it was “obtained in a manner that infringed or denied” Mr. Fareed’s rights guaranteed under the Charter. The phrase “obtained in a manner that violated” the Charter does not require a “cause and effect” relationship between the breach and the obtaining of the evidence. Some connection beyond what is too tenuous or too remote is required, but the connection may be temporal or contextual or causal, or some combination of the three. A direct causal connection will lean more heavily to exclusion of the evidence. In other circumstances, the degree of connection will be a factor to be taken into account in the weighing exercise involved under s. 24(2). See R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 56, 72.

[58] In this case, there is no causal connection between the seizure of the gun and any of the Charter breaches. There was no breach of Mr. Fareed’s rights prior to P.C. O’Toole seizing the firearm. However, everything else that happened flowed from that seizure and was contextually related to it. All of the subsequent breaches can be said to be part of the same “chain of events” between the accused and the police or the same “transaction or course of conduct”, as those terms are used by the Ontario Court of Appeal in Pino. This preliminary requirement of s. 24(2) is therefore met.

[59] Under s. 24(2) I am required to determine whether the admission of the evidence seized (in this case, the firearm) would bring the administration of justice into disrepute. The Supreme Court of Canada established in Grant that this analysis must take into account three factors: (1) the seriousness of the Charter-infringing conduct; (2) the impact of the breach on the Charter-protected rights of the accused; and (3) society’s interest in the adjudication of the case on its merits.

[60] It is well-recognized in the jurisprudence that, where there is more than one Charter breach, the ultimate determination must be made based on the cumulative nature and impact of the breaches. For example, one minor breach with minimal impact might not warrant excluding the evidence, but multiple breaches, even though individually minor, could well lead to a different result. That said, for present purposes, I will examine each category of breach separately under the first two of the three Grant factors, before turning to the final conclusion based on a cumulative assessment of the circumstances. I will deal first with the third Grant factor, which is common to all of the Charter breaches. Next, I will examine the first and second factors in the context of the ss. 9 and 10(b) breaches. Then I will deal with the particular problems presented by the s. 8 breach (failing to file the report to the justice of the peace). Finally, I will weigh the various relevant factors and set out the basis for my decision dismissing the application.

The Third Grant Factor: Interest in the Adjudication of the Case on its Merits

[61] The third Grant factor will almost inevitably favour admitting the evidence. Society always has an interest in having a case adjudicated on its merits. That is particularly so when the evidence is tangible, real evidence, the accuracy or reliability of which is not in any way suspect, and where excluding the evidence would mean the end of the Crown’s case. Further, I do not need to reiterate what has been said, over and over again, by judges across Canada, and most particularly in the City of Toronto, about the scourge of illegal firearms and the toll they take on our society. See e.g. R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1, at paras. 128-38, per Brown J.A. (dissenting), dissent aff’d 2019 SCC 32, [2019] 2 S.C.R. 576, at para. 1; R. v. Mengesha, 2022 ONCA 654, at paras. 13-17; R. v. Sampogna, 2020 ONSC 1024, at para. 12; R. v. Williams, 2013 ONSC 1855, at para. 22. That is also an important factor in this case.

Section 9 Breach: Failure to Advise of the Reason for the Detention

[62] I am dealing here with the period of detention after Mr. Fareed was removed from the car and before he was advised that he was under arrest for possession of the firearm. I have found that there was no time to advise Mr. Fareed of the reason he was initially detained, which was to investigate concerns of potential and imminent impaired driving. The discovery of the gun overtook that initial purpose. Further, there was an initial period of at least 15 minutes, during which officer safety was paramount and securing the 6 people detained, while dealing with the loaded gun seized, took priority over advising the detainees of their rights.

[63] However, I have found that for approximately 45 minutes after that initial flurry of activity, Mr. Fareed was handcuffed and seated or lying on the lawn under police guard, without having been told of the grounds upon which he had been detained. There is no reason this simple task could not have been done. This is the s. 9 Charter breach.

[64] While recognizing that a breach of this requirement under s. 9 of the Charter can often be very serious, I do not find that to be the case here. P.C. O’Toole found a loaded gun in a satchel propped up between Mr. Fareed’s feet. Mr. Fareed’s hand was touching the satchel when P.C. O’Toole grabbed the gun out of the satchel and ordered Mr. Fareed out of the car at gunpoint, while shouting “Gun! Gun! Gun!” It would have been advisable once things settled down, and everyone was hand-cuffed, to officially inform Mr. Fareed that he was being detained or arrested for possession of that firearm. However, there can have been no doubt at all in Mr. Fareed’s mind that the reason he was being detained related to that firearm. In those circumstances I do not find the breach to have been a serious one, and it had virtually no impact on Mr. Fareed. Nothing at all happened to Mr. Fareed in those 45 minutes as the officers were busy securing the area, proving the gun safe, dealing with the other people in the house, getting the Canine Unit on scene, searching the Airbnb, and deciding which of the detainees could be released. He knew why he was being detained, and ultimately arrested, whether this was told to him officially or not.

[65] Both the seriousness of the police conduct and the impact on Mr. Fareed’s rights are at the low end of the spectrum.

Section 10(b) Breach: Delay in Putting Mr. Fareed in Touch with Counsel of His Choice

[66] I have found that it was not feasible to facilitate the exercise of Mr. Fareed’s right to speak to counsel until he was at the police station. However, there was unacceptable delay of approximately one hour from the point when Mr. Fareed stated he wanted to speak to his lawyer and the point at which the police car left the scene to take him to the station. Almost immediately after the intake procedures, P.C. O’Toole located a phone number for Mr. Addelman and attempted to reach him. He left a message at that number. I find this was a good faith attempt to put Mr. Fareed in touch with his counsel of choice. It is not P.C. O’Toole’s fault that Mr. Addelman never called back.

[67] However, based on the evidence before me, neither P.C. O’Toole, nor any other officer took any other steps to locate Mr. Addelman, nor to ask Mr. Fareed if he wished to choose another lawyer for them to call. It was completely reasonable for Mr. Fareed to refuse to speak to duty counsel the first time that was offered to him, as it was so close to the message having been left for Mr. Addelman. Although there was no evidence as to how this came about, Mr. Fareed did speak to duty counsel at approximately 12:00 noon. Approximately five hours later, at Mr. Fareed’s request, an officer contacted Mr. Fareed’s mother and obtained the name of another lawyer, and Mr. Fareed was able to speak to that lawyer.

[68] The officers’ compliance with the duty on them to connect Mr. Fareed with his counsel of choice was by no means perfect. Mistakes were made and the officers were not as diligent as they should have been. The length of time that elapsed is concerning. However, Mr. Fareed did avail himself of the opportunity to speak to duty counsel at about noon, and later that afternoon was also able to speak to his counsel of choice. It is aggravating that for approximately one hour, from Mr. Fareed’s arrest to when he was taken to the station, he was held in cuffs on a front lawn in a residential neighbourhood in full view of anyone passing by. I find that to be an affront to Mr. Fareed’s personal dignity. However, I do not find any other aggravating circumstances.

[69] I have placed the onus on the police to explain the overall delay in putting Mr. Fareed in touch with his counsel of choice, and no such evidence was forthcoming, which is why I have concluded that this delay constitutes a breach of s. 10(b) of the Charter. However, there is no basis to conclude any other aggravating circumstances were present. There was no evidence about what happened in between and no basis for me to determine that this was anything beyond inattention. For example, there is no evidence that Mr. Fareed was persistently asking to speak to a different lawyer from noon until 5:00 p.m. and being ignored, nor is there any indication that he asked to speak to a different lawyer at any point between noon and about 5:00 p.m. The Charter breach was not deliberate, nor was it the result of any systemic issues. Mr. Fareed was subjected to a strip search prior to getting legal advice, but the strip search was inevitable given the circumstances and the fact that he was being detained for a bail hearing, and there is no indication that it was not conducted appropriately.

[70] On the sliding scale of the seriousness of the offending conduct, I would put this case somewhere around the middle, or perhaps slightly above that, mainly because of the length of time involved.

[71] The impact of the delay on Mr. Fareed’s rights was also not on the extreme end of the seriousness scale, but rather somewhere around the middle. The only aggravating circumstance appears to be the length of the delay. No attempts were made to take a statement from him, and he did not volunteer one. No evidence of any kind was obtained from him during this period of time. The only evidence obtained preceded any Charter breach. That is not to excuse the Charter breaches that did occur, but rather to place it on a continuum and to note that, apart from the impact present in every case when the right to counsel is not implemented, there was nothing else aggravating in this case.

Section 8 Breach: Failure to File Report

[72] The police were required to file a report with a justice of the peace to get approval for the continued retention of the firearm and the satchel in which it was found. They simply did not do it. They have offered no excuse for not doing it. The legislation requiring the report exists for an important reason – to ensure judicial oversight and public accountability whenever police take property away from people. This is an important value in our society.

[73] However, it seems to be regarded by the police as just another piece of bureaucratic paperwork taking up their valuable time. Inevitably, when these breaches arise, nothing is done. That is because, in the greater scheme of things, this particular infringement of s. 8 is not as intrusive or egregious as s. 8 breaches tend to be. Usually, the result in any particular case, is to find that the interference with rights is minimal and does not warrant excluding the evidence.

[74] In this case, if the police had filed the necessary report, the justice of the peace would inevitably have approved retaining the property until the conclusion of these proceedings. The impact on the accused is negligible. He is not entitled to have possession of the firearm in any event. Excluding the gun from evidence would completely gut the Crown’s case. In almost all cases, the normal application of the Grant factors would result in the gun being admitted into evidence. The difficulty that therefore arises is that it appears there are never any consequences for failing to file these required reports. I will deal with that issue at the conclusion of these reasons.

Balancing of Factors and Conclusion

[75] The final stage of the Grant analysis requires me to assess and balance the effect of admitting the evidence on society’s confidence in the justice system, having regard to the factors I have referred to above. The third factor, as is typically the case, favours admitting the evidence as it is desirable to have a case adjudicated on its merits, particularly when the offence involved involves issues of public safety, which arise in firearms cases. See Omar, at paras. 135-38.

[76] In R. v. Tim, 2022 SCC 12, 467 D.L.R. (4th) 389, at para. 98, the Supreme Court of Canada summarized the principles to be applied at this balancing stage as follows:

The final step in the s. 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. Such balancing involves a qualitative exercise, one that is not capable of mathematical precision (see Grant, at paras. 86 and 140; Harrison, at para. 36). Each factor must be assessed and weighed in the balance, focussing on the long-term integrity of, and public confidence in, the administration of justice (see Grant, at para. 68). The balancing is prospective: it aims to ensure that evidence obtained through a Charter breach “does not do further damage to the repute of the justice system” (Grant, at para. 69). The balancing is also societal: the goal is not to punish the police, but rather to address systemic concerns by analyzing “the broad impact of admission of the evidence on the long-term repute of the justice system” (Grant, at para. 70; see also Le, at para. 139).

[77] The s. 9 breach in this case was not serious and had virtually no impact. The s. 10(b) breaches are more serious, particularly given the period of time involved and the multiple breaches. The s. 8 breach by failing to file a report likewise had no impact whatsoever on the rights of this particular accused. These factors point towards excluding the evidence, but not strongly so. The force of the third factor pulls strongly in the other direction. In all the circumstances, I find that the police conduct was not sufficiently egregious to require that the evidence be excluded in order to distance the court from that conduct. In my view, concerns about the long-term repute of the administration of justice do not support excluding the evidence of the gun in this case, particularly given the fact that the various Charter breaches all occurred after the gun was lawfully seized by the police. Balancing all the relevant factors, I find that excluding the evidence would be more likely to tarnish the reputation of the judicial system than admitting it. Therefore, the application is dismissed.

J. The Failure to Comply with the Reporting Requirement

[78] I have decided that the firearm seized is admissible in evidence. However, I will take this opportunity to express my growing concern about the failure by police to file the required reports to a justice of the peace following seizures of evidence.

[79] While I recognize that this is purely anecdotal, lately I am seeing more cases in which the police failure to file a report under s. 489.1 of the Criminal Code is raised. Sometimes recurring issues are mere coincidence, rather than a pattern. Also, even if there are more of these applications coming before the courts, I have no way of knowing if that is because the police are increasingly failing to file reports, or whether counsel are increasingly raising it with the courts. However, whatever the origin or explanation, this is a troubling trend. I am not aware of any case where a failure to file a s. 489.1 report has resulted in the exclusion of evidence. I have decided not to do so in this case, notwithstanding that it was not the only Charter breach involved.

[80] It has repeatedly been said that the purpose of excluding evidence under s. 24(2) of the Charter is not to punish the police. The decision in Tim is one of the cases making this point, as follows:

I have concluded that the first line of inquiry under Grant pulls weakly toward exclusion and the second does so moderately, but the third pulls strongly toward admission. In my view, on these facts, the final balancing does not call for exclusion of the evidence to protect the long-term repute of the justice system. A relatively inexperienced police officer made an honest mistake about the legal status of gabapentin, a prescription drug that is traded on the street and that the appellant tried to hide during a lawful traffic collision investigation. That led to an arrest and searches incident to arrest, and to the discovery of a loaded gun, ammunition, and fentanyl — a drug that has been described as “public enemy number one” (R. v. Parranto, 2021 SCC 46, at para. 93, per Moldaver J.). Excluding this evidence would simply punish the police — which is not the purpose of s. 24(2) — and would damage, rather than vindicate, the long-term repute of the criminal justice system. [Emphasis added.]

[81] I agree with that principle. On the other hand, enforcement of Charter rights by excluding evidence can sometimes be the only way to effect changes in police behaviour. Where a Charter breach is due to a systemic problem with the police, or a lack of education on the issue for the police forces involved, what might otherwise be viewed as a minor breach may change its nature and be treated as far more serious. It is well-recognized in the jurisprudence that Charter violations rooted in systemic problems can have a two-fold impact on decisions under s. 24(2) about whether to exclude evidence. First, Charter-offending conduct will be seen as more serious in the consideration of the first Grant factor, which would be a factor supporting exclusion of the evidence. See R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 25; R. v. G.T.D., 2017 ABCA 274; 57 Alta. L.R. (6th) 213, at paras. 82-86, per Veldhuis J.A. (dissenting), dissent aff’d 2018 SCC 7, [2018] 1 S.C.R. 220, at para. 3; R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, at para. 85; R. v. Mendez, 2014 ONSC 498, 306 C.C.C. (3d) 464, at para. 114. Second, Charter breaches that are rooted in persistent and systemic police practices will make it more important for courts to distance themselves from such conduct in order to protect the integrity of the administration of justice. This can tip the scales toward excluding the evidence at the final balancing stage of the s. 24(2) analysis. See Mendez, at para. 122; R. v. Neyazi, 2014 ONSC 6838, 16 C.R. (7th) 223, at paras. 207, 228; R. v. Jhite, 2021 ONSC 3036, at para. 103.

[82] In this regard, I adopt the reasoning of Veldhuis J.A. in R. v. G.T.D., which involved a systemic problem arising from the standard caution administered by all officers of the Edmonton Police Force (“EPS”). Justice Veldhuis wrote the dissenting reasons at the Alberta Court of Appeal, but the Supreme Court of Canada subsequently affirmed her reasoning, granting the appeal in brief oral reasons substantially for the reasons given by the dissenting judge. In determining the standard caution administered to be a systemic problem that made the conduct more serious, Veldhuis J.A. wrote:

It is not the arresting officer’s behaviour individually that is of greatest concern, however. Instead, any fault lies at the feet of EPS institutionally, because it included the eliciting question at the end of its standard caution, or alternatively, because it failed to train its officers not to read this question when a detainee asked to speak with a lawyer. The arresting officer’s good faith does not significantly mitigate the seriousness of a Charter breach if his good faith misunderstanding of the law was a result of EPS training or policy that did not properly educate the officer about his obligations under the Charter. Instead, such an institutional or systemic Charter breach is more serious than an isolated incident: R v Harrison, 2009 SCC 34 at para 25, [2009] 2 SCR 494; R v Heng, 2014 ABCA 325 at paras 10-11, 580 AR 397; R v McGuffie, 2016 ONCA 365 at para 67, 131 OR (3d) 643. (G.T.D., at para. 82. See also R. v. Ramirez-Chavira, 2021 ONSC 3603, at para. 52, per Forestell J.).

[83] In dealing with the need for courts to dissociate themselves from this kind of Charter breach, Veldhuis J.A. wrote:

Courts must take institutional or systemic Charter breaches seriously, and keep in mind that “for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge”: Grant at para 75. Whether a s 10(b) breach was the result of a “general policy,” as opposed to a “one-off decision,” is “highly relevant to an assessment of the seriousness of the breach”: Heng at para 11. When a Charter breach is systemic, it is not only the police conduct in an individual case from which a court hopes to dissociate itself. The court also aims to dissociate itself from the many other occasions when the police used the same unconstitutional practice. (G.T.D., at para. 85).

[84] On the issue before me, I note that the purpose of the reporting requirement is one that goes to the core of the integrity of the administration of justice, making the police publicly accountable for any seizures of property. In circumstances where, as here, the seizure is made without a warrant, there is no public record of the seizure until the police file the required report. It is not a duty that should be trivialized as mere paperwork. It is important that police forces receive proper training and education on the need to file these reports, and the important policy reasons for doing so. In future cases, a failure to file a report might well be the factor that tips me towards excluding evidence I might otherwise have found admissible.

Molloy J.

Released: March 9, 2023