COURT FILE NO.: CR-21- 5/3465/346 DATE: 2023-05-03 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Adil Zeno

BEFORE: Justice N. J. Spies

COUNSEL: Paul Zambonini and Michael Townsend, for the Crown John Fitzmaurice and Neil Fitzmaurice, for the Defence

HEARD: November 14, 2022

RULING ON DEFENCE Charter APPLICATION TO EXCLUDE EVIDENCE

Introduction

[1] On January 27, 2023, following a trial before me without a jury, I convicted Adil Zeno of being an accessory after the fact to the murder of Jonathan Gayle, contrary to s. 240 of the Criminal Code, R.S.C., 1985, c. C-46: see R. v. Zeno, 2023 ONSC 699. At the commencement of Mr. Zeno’s trial, I heard several applications brought by the Crown and the Defence. One of those applications brought on behalf of Mr. Zeno sought an order excluding video evidence at this trial pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms as a result of alleged breaches of his rights under ss. 8, 9, and 10(b) of the Charter. Specifically, the evidence sought to be excluded are videos on a cell phone that show Mr. Zeno, Mr. Ahmed, and Mr. Adem hanging out together, and Mr. Zeno brandishing a loaded handgun. The cell phone in issue was one of four cell phones that were searched and will be referred to herein as Cell Phone #1. There was no dispute that Mr. Zeno is not the owner of Cell Phone #1. There was no evidence before me as to who owned any of the cell phones, although in submissions by counsel, I was advised that it appeared that Cellphone #1 belonged to Mr. Adem. Mr. Fitzmaurice submitted that Mr. Zeno owned one of the phones, but there was no evidence of that before me.

[2] The Crown wished to introduce these videos from Cell Phone #1 at this trial. Following argument of the Crown’s application to lead prior discreditable conduct, I granted that application, subject of course to my disposition of this Defence application.

[3] On November 18, 2022, I advised counsel and Mr. Zeno that this Charter Defence application was dismissed with reasons to follow. These are those reasons.

The Issues

[4] It is the position of counsel for Mr. Zeno that:

a) the police did not have reasonable grounds to arrest him for possession of firearms offences during the course of the execution of a search warrant at 21 Todd Road, Ajax (the “House”) - charges that are unrelated to the charge that was before me and as such, there was a breach of his s. 9 Charter rights;

b) his s. 10(b) Charter rights were breached by the police as they unreasonably delayed giving him access to legal counsel following that arrest; and

c) the judicial authorization that was granted to search the cellphones that were seized during the execution of the search warrant at the House could not have been granted, and as such, the search of Cellphone #1 was contrary to his s. 8 Charter rights.

[5] As a result of these alleged Charter breaches, it is the position of Mr. Zeno that the evidence seized from Cellphone #1, namely the videos which show him holding a loaded firearm, should be excluded pursuant to s. 24(2) of the Charter. Mr. Zeno took no issue with the Crown introducing the videos seized from Cellphone #1 that show him in the company of Messrs. Adem and Ahmed. In fact, during the course of submissions, it was suggested by counsel for Mr. Zeno that those videos are consistent with his position that he had no idea about the murder of Mr. Gayle when they went to a motel and that he just wanted to party with Messrs. Adem and Ahmed. The Defence did contest the admissibility of the video that showed Mr. Zeno in possession of a firearm.

[6] The position of counsel for the Crown is that there has been no breach of any of Mr. Zeno’s Charter rights, and that based on the totality of the information available to the police, the police had reasonable and probable grounds to:

a) apply for and receive judicial authorization to search the House;

b) arrest Mr. Zeno for firearms offences;

c) apply for and receive judicial authorization to search the cell phones; and

d) although Mr. Zeno would have ideally been put in touch with his lawyer earlier, on the facts of this case, it does not appear the delay in processing Mr. Zeno was unreasonable, nor that it made any practical difference.

[7] In the alternative, it is the Crown’s position that even if there was a breach of Mr. Zeno's rights, the balancing of the s. 24(2) factors weighs in favour of admitting this evidence.

[8] The issues therefore are:

a) Has the Crown proven that Mr. Zeno’s arrest was lawful?

b) Has the Crown proven that Mr. Zeno’s s. 10(b) Charter rights were not breached by the delay in contacting his lawyer?

c) Has Mr. Zeno proven that his s. 8 Charter rights were breached when Cellphone #1 was searched?

d) If there was a breach of any of Mr. Zeno’s Charter rights, should any evidence be excluded from the trial pursuant to s. 24(2) of the Charter?

The Evidence and Preliminary Findings of Fact

Search Warrant #1

[9] The background facts are unrelated to the charge currently before this court and are not in dispute. In the late afternoon of December 28, 2018, Durham Police Constables (“PC”) Sivabalan and Thavaseelan responded to an "armed person" 911 call at the House. The female complainant, Patti Lahey, reported in the 911 call that as she was driving down the street, a male flagged her down, stating that he had been assaulted and that someone inside the House had a gun and was going to kill him. He was very drunk and incoherent at times. She was later interviewed and advised police that the male told her he had been beaten up and that he feared for his life as they had “guns in the house”.

[10] The man was still on scene when the officers arrived, and they identified him as Idriss Buni. He told the officers that "they" (referring to people in the House) were going to shoot him and he repeatedly stated that he had been robbed by people in the House. PC Sivabalan was tasked with remaining at the House to provide containment at the front door of the House. Because of his condition, Mr. Buni was placed under arrest for public intoxication and transported to hospital by PC Thavaseelan. At the hospital, Mr. Buni recanted his statement that there were firearms in the House.

[11] Based on the information received, police from the Durham Police Service (“DPS”) decided to seek a warrant to search the home.

[12] I heard from Detective Constable (“DC”) Darrell MacIver, the officer who was tasked with preparing the Information to Obtain (“ITO”) a telewarrant to search the House (Warrant #1). There was no issue with the validity of that warrant, which was issued at 11:48 pm on December 28th and authorized a search of the House for “firearm(s), documentation and ammunition”.

[13] The ITO contained the information summarized above that DC MacIver received from the 911 call, the telephone interview of the complainant, and from PC Sivabalan and PC Thavaseelan in Appendix C. DC MacIver did not know who owned the House and whether the people in the House were guests of the owner or not. There is no evidence as to who owned the House, but there is no dispute that it was not owned by Mr. Zeno.

[14] In addition, DC MacIver testified that as he was preparing the ITO, he received information from two undercover officers from Toronto Police Services (“TPS”) that he believed to be true. This information was contained in Appendix D, and DC MacIver testified that this information provided more grounds for the warrant in that it corroborated what Mr. Buni had told the female complainant as reported by her to police. In summary, Appendix D reports information from two TPS undercover officers that Mr. Zeno was in the House with the police outside at this time, that he had shown the undercover officers pictures on the social media Snapchat of him and one other unknown male brandishing a real, loaded firearm the day before, and that Mr. Zeno had told the undercover officers that there were armed individuals in the House. In his evidence in chief, DC MacIver testified that when he was preparing the ITO, he did not think he could get a search warrant until he received the information from the TPS undercover officers that corroborated all the other information that he had. He conceded that without Appendix D, they would not get a search warrant for the House.

[15] In the ITO, DC MacIver asked that Appendix D be sealed because it contains sensitive information about an ongoing TPS investigation involving undercover officers. There were however some references to this information and Appendix D, in Appendix C as follows:

a) Under the heading “Overview of the Investigation”, para. 5 states:

Information was received from the Toronto Police Service that corroborated what Lahey was advising the Durham Regional Police Service in regards to there being a firearm inside the residence … Information is based on covert investigation being conducted by the Toronto Police service. For the protection of their identity due to ongoing covert investigations the officers will be identified as 3BFF and 3BG.

b) Under the heading “Grounds to Believe the Items Sought are in the Specified Location”, para. 12 states:

Information was received from the Toronto Police Service that corroborated what Lahey was advising Durham Regional Police Service in regards to there being a firearm inside the residence at 21 Todd Road in the Town of Ajax. Please see Appendix D for details.

b) Under the same heading at para. 16, the ITO states that Idriss Buni had told Ms. Lahey that “he was scared for his life as they had guns ”; and

c) Under the heading “Conclusion” at para. 21, the ITO states:

Information was received from the Toronto Police Service which I have been advised of and that I believe corroborates the statement of Patti Lahey. [Emphasis added]

[16] In addition, Appendix B of the ITO states that the offences in relation to the warrant is that “Unknown individual s and a person of interest, [a reference to Mr. Zeno] please see Appendix D, located at 21 Todd Road … did possess a firearm(s) to wit a pistol without being the holder of a licence under which they may possess it.”

[17] I note as well that para. 19 of Appendix C states:

Additionally, investigators are of the belief that firearms are within the residence. Calling the occupants out of the residence under the cover of darkness would allow officers to disorient the occupants and protect officers if an entry is required due to a lack of cooperation.

[18] Although the officers attending to search the House did not have the information set out in Appendix D, based on this information in Appendix C, the officers would have good reason to believe that there could be more than one firearm in the House.

[19] There was no challenge to the search of the House which resulted in eight items being seized including four cell phones, including Cell Phone #1, and a .9 mm Taurus handgun.

The arrest of Mr. Zeno for unauthorized possession of a firearm

[20] DC MacIver was present when the search warrant was executed. He testified that the Tactical Service Unit of the DPS breached the door to the House at 1:15 a.m. and they called everyone inside the house to come out to the door. Mr. Zeno, along with eight others, were arrested and charged with a series of firearms related offences. As the individuals were arrested, they were each turned over to uniformed officers to be transported to the cells. DC MacIver was not asked about where they were to be taken. Once the House was cleared, officers began the search of the House at 1:37 a.m.

[21] DC MacIvor was not the one who made the decision to arrest everyone in the house. He testified that police did not have a practice to arrest everyone in a house and that that decision would depend on the circumstances. It was his belief that the decision was made to arrest everyone in the house because the police had reasonable grounds to believe there was a firearm in the house. DC MacIver testified that police did not know how many people were in the house nor who was in the house, save for Mr. Zeno, and that he was not there by himself. There were at least three people in the House, but there could have been as many as 25 – he had no idea.

[22] During the course of the evidence of PC Sheridan, I was advised that it was agreed that the decision to arrest everyone in the House for possession of a firearm was based only on the information in Appendix C, because Appendix D was sealed and therefore the information in that appendix was not known to the other officers. I did not hear from the officer(s) who made the decision to arrest Mr. Zeno or the others, but Mr. Fitzmaurice did not argue that the arresting officer(s) did not subjectively believe they had grounds to arrest Mr. Zeno.

[23] There is no dispute that at 1:29 a.m. on December 29th, Mr. Zeno was arrested and transported out of the home by PC Sword. Although the factum filed by the Defence sets out some information where Mr. Zeno was allegedly found in the House at the time of his arrest, I did not hear any evidence to contradict the evidence of DC MacIver that he and the others in the House were called to the door of the House. Accordingly, I have relied in this regard on the evidence of DC MacIver which is consistent with what was intended as set out in Appendix C.

[24] After his arrest, Mr. Zeno was transferred to PC Sheridan. At 1:32 a.m., PC Sheridan read Mr. Zeno his right to counsel and caution from the back of his police notebook. In response, Mr. Zeno said that he understood, and he asked to speak to a lawyer and provided PC Sheridan with the name – Joe Louch – and a phone number for Mr. Louch.

[25] Mr. Zeno was placed in the back of PC Sheridan’s police car. PC Sheridan testified that he was waiting for instructions as to where to transport Mr. Zeno. If Mr. Zeno was to be released, they would have gone to the nearest station in Pickering, but if he was to be held pending bail, it would be the station in Oshawa. At some point, he received information that a firearm had been located and that everyone who had been arrested were to be transferred to Oshawa.

[26] PC Sheridan left the House with Mr. Zeno at 2:00 a.m. and they arrived at the Oshawa station at 2:20 a.m. PC Sheridan testified that he was the last of the officers to arrive at the station, and so there was quite a long wait in the scout car because they had to wait for eight other arrested parties to be processed. The Oshawa station has two Sally Ports, but only one person can be paraded at a time. As a result, Mr. Zeno was not paraded until just before 3:31 a.m. At 3:31 a.m., Mr. Zeno was placed in a cell and PC Sheridan testified that he called Mr. Louch, and he left a message for Mr. Louch as no one picked up. PC Sheridan then asked Mr. Zeno if he wanted to speak to another lawyer or to duty counsel. Mr. Zeno said no. PC Sheridan testified that if Mr. Zeno had said otherwise, that he would have called Duty Counsel for him. At no time was Mr. Zeno asked any questions, and at no time did he give any inculpatory evidence.

[27] In cross-examination, PC Sheridan testified that he did not have a work issued cell phone as a road officer, and he did not make any efforts to obtain a phone from anyone while he waited with Mr. Zeno. The one phone in the phone room was in the parading area of the station and so it could not be accessed while defendants were being paraded as they needed to be kept separate from one another. At the time, they did not have a procedure to facilitate access to counsel in cases where there was a delay because of multiple defendants needing to be processed. PC Sheridan was not asked if he asked Mr. Zeno if he had a cell phone or if he considered letting Mr. Zeno use his own cell phone if he had one. As I have already stated, there was no evidence before me that any of the four cell phones that were seized belonged to Mr. Zeno.

The ITO to search the contents of the seized cell phones

[28] DC MacIver testified that he tasked DC Bowler to prepare an ITO to seek a judicial authorization to search the contents of the seized cell phones. At the time, he had no idea who the cell phones belonged to. He admitted that before the search of the House, he believed people found in the House would likely have a cell phone in their possession, but he was not thinking of the phones, he was focused on looking for a firearm. I accept that evidence and why as a result, DC MacIver did not ask to search cell phones in Warrant #1.

[29] DC MacIver testified that he gave DC Bowler an overview of the investigation and that DC Bowler was aware of Warrant #1 that had been executed. Although he had information from Appendix D in his notes, DC MacIver testified that he did not review his notes with DC Bowler, nor did he give him a copy of his notes. DC Bowler would not have been aware of Appendix D to Warrant #1. He told DC Bowler to look at the Incident number for information.

[30] DC MacIver was asked a number of questions about the fact that he did not give DC Bowler a copy of Appendix D. He testified that it did not occur to him to do so, as Appendix D had been sealed. He went on to say in his evidence in chief that this was “intentional” and that he was focused on protecting the TPS investigation by the two undercover officers that was still ongoing. In cross-examination, DC McIver testified that he did not realize that Appendix D to Warrant #1 was important to obtain a warrant to search the cell phones and that he never thought for a second to give Appendix D to DC Bowler. DC MacIver testified that he did not think it was a conscious decision not to give DC Bowler this information. In his mind once Appendix D was sealed it “didn’t exist” and it did not come to mind. DC MacIver testified that he would not have thought about the fact that the information from Appendix D was not in the second warrant. He conceded that he could have had DC Bowler include Appendix D in the warrant to search the cell phones and ask for a sealing order again. Considering all of the evidence of DC MacIver, I find that he did not really make a deliberate decision not to give DC Bowler a copy Appendix D. He should have realized that it was important to the ITO that DC Bowler was preparing, but his failure was inadvertent and not an attempt to hide this information from the issuing justice.

[31] DC Bowler testified that had he been aware of the information in Appendix D, he would have included it in the ITO to search the cell phones as it corroborated the information he had. DC MacIver testified that he would have read the ITO prepared by DC Bowler quickly and if there had been anything obvious, he would have pointed it out to him. However, DC Bowler believed that it was DC Bacon who reviewed it and that he did not give it to DC McIver to review. Even if DC MacIver reviewed the ITO quickly, given his evidence, the fact there was no reference to the information in Appendix D would not have been questioned by him. There is no evidence that DC Bacon was aware of the contents of Appendix D.

[32] The ITO to search the cell phones asked for permission to search for incoming and outgoing messages and phone conversations from December 27, 2018 at 00:00 a.m. until December 30, 2018 at 00:00 a.m. Broader access was requested vis-a-vis the picture gallery and contacts in order to aid in the identification of the ownership of the firearm that was seized. In a note at the end of Appendix C, DC Bowler stated that he had been advised by DC Bacon that: “it is in his experience that people who possess firearms illegally are known to take what are deemed to be trophy pictures and store them within their devise to show their associates”. In cross-examination, DC Bowler admitted that DC Bacon used the term “could be” or “might be” in connection with this information.

[33] The judicial authorization was granted on February 26, 2019, and the phones were searched on that basis. Images of Mr. Zeno holding a firearm that was loaded were found in a video on Cell Phone #1, and they are the images that the Defence sought to exclude from evidence.

The Charter application before Burstein J.

[34] Mr. Zeno stood trial on the firearms charges with two co-accused, Messrs. Ahmed and Adem, and one other defendant before Justice Burstein in the Ontario Court of Justice. At the trial, the accused brought a joint Charter application challenging the constitutionality of the search of the cellphones and applying to have the cellphone video clips excluded from evidence under ss. 8 and 24(2). At that trial Mr. Zeno did not challenge his arrest or allege a breach of his s. 9 or 10 Charter rights. That application was dismissed by Justice Burstein on April 8, 2021, with written reasons.

[35] The issue of standing was raised before Burstein J. The evidence before him was that none of the four cell phones seized was found on the person of any of the nine people who were arrested. The Crown conceded that Mr. Zeno had standing to challenge the search and seizure of Cellphone #4, but not the other cell phones. Burstein J. found that the defendants did have standing to challenge the seizure and search of all four cell phones. He relied on R. v. Edwards, [1996] 1 S.C.R. 128 at para. 45, R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, and R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, and the prosecution theory that all four defendants exercised control over the one firearm that was seized, that in his view equally supported the defendants’ s. 8 claim in relation to the cell phones found in the same House as the firearm, as well as other aspects of the Crown’s theory and the time stamps on the videos.

[36] On the issue of the sufficiency of the ITO to search the cellphones, the Crown conceded that the ITO was facially insufficient, which Burstein J. found was enough to end the inquiry.

[37] However, the Crown sought to 'amplify' the ITO with the information set out in Appendix D. Burstein J. was not satisfied that all the jurisprudential requirements for admission as amplification evidence had been met. He held that in the absence of any testimony from any police officer explaining why it was omitted from the ITO for the search of the cell phones, given the Crown contention that Appendix D could have reasonably grounded an otherwise deficient search warrant, that he could not say the omission of Appendix D was minor, and he was unable to find that its omission was a “good faith ‘technical error in the drafting’”. Justice Burstein did go on to note however that there was no evidence to support a finding that it was deliberately omitted by the police in an attempt to gain some tactical advantage, and that its omission only weakened the grounds presented in support of searching the cell phones.

[38] In his reasons, Justice Burstein stated that he had queried whether or not he was bound by the Crown’s concession that the ITO did not provide an objectively reasonable basis for believing that an examination of the cell phones would likely produce evidence related to the illegal possession of the handgun or whether he had a discretion to reject the concession, but he proceeded on the basis of the Crown’s concession. Having found that the ITO could not be amplified, he found that there had been a breach of the defendants’ s. 8 Charter rights.

[39] After conducting a s. 24(2) analysis, Burstein J. declined to exclude the evidence of the videos. As before me, the defendants had argued that there was a larger pattern of police disregard for the Charter, but Justice Burstein rejected those arguments and held that he was not satisfied that the evidence supported a finding that the police engaged in a pattern of other Charter-infringing conduct. He also gave reasons for why he did not find that the cell phone search warrant authorized a constitutionally overbroad examination of the contents of the cell phones. He saw the real issue on the seriousness of the s. 8 breach to be the nature of the ITO’s deficiency. On that issue, Burstein J. held that he could consider Appendix D and found that even though he had not heard from the affiant of the ITO, that the omission of Appendix D was inadvertent and no doubt an "investigative blunder".

[40] Justice Burstein rejected the Defence argument that the issuing justice should not have been able to rely on DC Bacon's experience that people who possess firearms have been known to take "trophy pictures." Rather, he characterized this as "common sense" and "credibly based probability"(emphasis added). As Justice Burstein pointed out"absolute causal certainty" is not required at the issuing stage. He also noted that Appendix D showed that one of the defendants had done exactly what DC Bacon’s experience suggested.

[41] Considering the information in the ITO with Appendix D, Burstein J. was satisfied that the police had reasonable grounds to support the issuance of a warrant to search the cell phones and that as such, the s. 8 interest requiring the existence of probable grounds was respected in this case. He found as well that there was no evidence suggesting that the police had engaged in any deception or malfeasance during the investigation, although given that he had not heard from the affiant, he could not find that the police acted in good faith. He held as well that it appeared that the police were attempting to comply with all the relevant legal requirements for the conduction of their investigation – they did not attempt any “constitutional shortcuts”. In considering the other Grant factors, Burstein J. found that the s. 8 breach had a significant impact on the privacy interests of the defendants, but that the videos were very important to the Crown’s case. In the final balancing exercise, Justice Burstein found that the three sets of factors, balanced together, favored admission of the evidence.

[42] Although Burstein J. accepted that the cellphone videos showed Mr. Zeno and the others handling a firearm, he was uncertain when the videos were taken. Since Messrs. Adem and Ahmed had only recently turned 18 years old, Justice Burstein was not satisfied that he had jurisdiction to try the offences.

Analysis

Has the Crown proven that Mr. Zeno’s arrest was lawful and that, as a result, his s. 9 Charter rights were not breached?

[43] The first issue to consider is whether Mr. Zeno’s arrest was lawful. Section 9 of the Charter provides that “everyone has the right not to be arbitrarily detained or imprisoned”. It is Mr. Zeno’s position that the arresting officer had no basis to believe that he had knowledge and control of a firearm, and therefore, there were no reasonable grounds to arrest him.

[44] Section 495(1)(a) of the Criminal Code provides legislative authority for a police officer to arrest a person without a warrant if the officer, on reasonable grounds, believes the person has committed an indictable offence. “Reasonable grounds” has both a subjective and an objective component. As Cory J. wrote in R. v. Storrey, [1990] 1 S.C.R. 241, at para. 17:

[A]n arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds, must in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.

[45] The “reasonable grounds to believe” standard was distinguished from the standard of “reasonable grounds to suspect” in R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 26-27, citing R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 75. The reasonable grounds standard involves a belief in the probability of crime, as opposed to an expectation of the possibility of crime; Kang-Brown, at paras. 26-27.

[46] Mr. Fitzmaurice argued that the only evidence the police had when the decision was made to arrest Mr. Zeno was that he was in the House where the firearm was found. He submitted that Mr. Zeno’s presence alone was woefully insufficient to establish reasonable grounds to arrest him. The police had no basis to believe that Mr. Zeno was in control of a firearm. No witness identified Mr. Zeno as having been in possession of a firearm or gave a description of an assailant that might match Mr. Zeno. It is the Defence position that the decision to arrest everyone in the house and investigate later to see who owned the firearm was a significant Charter breach. The persons in the house should only have been detained pending the investigation of who owned and/or knew about the firearm.

[47] Mr. Fitzmaurice argued that the courts have repeatedly held that presence in a place is insufficient alone to establish knowledge and control of items found in that place. He relied on R. v. Watson, 2011 ONCA 437 and R. v. Lincoln, 2012 ONCA 542 where the Court of Appeal held that there is no presumption that the occupant of a home has knowledge or control of items found in the home. Those cases however are clearly distinguishable, as they are both appeals from trials on possession charges. The same is true of R. v. Terrence, [1983] 1 S.C.R. 357.

[48] I was also referred to the decision of Leroy J. of this court in R. v. Mohammed, 2015 ONSC 905 where Leroy J. was hearing a summary conviction appeal. One of the many issues on that appeal was whether the arrest of the defendant for possession of marijuana for the purpose of trafficking was justified in that the marijuana in question was found packaged for street sale and stuffed in the underwear of the back seat passenger in the vehicle he was driving. The front seat passenger was found to have a small quantity of marijuana in small packages on his person. The defendant was not found to be carrying any drugs, nor was the marijuana found to be near him as the driver. On these facts, Leroy J. found the arrest was arbitrary and a breach of s. 9, relying on the principle that “mere presence at the scene of a crime does not affix liability. It is not good practice to arrest everyone at the scene for that reason alone” at para. 45-47. Mr. Fitzmaurice argued that these facts are stronger than the case at bar in that Mr. Zeno was not the driver of a vehicle. I disagree. The facts in Mohammed are clearly distinguishable from the facts in the case at bar, as the location of the marijuana was known to the arresting officer. In the case at bar, the police believed there was one or more firearms in the House but did not know who had possession of the firearm(s) or knew about the firearm(s).

[49] Finally, I was referred to R. v. Daoud, [2002] O.J. No. 4754 (OCJ) which Mr. Fitzmaurice argued is almost directly analogous to the facts in the case at bar. In my view, that case is also distinguishable. In Daoud, the police entered a massage parlour and witnessed a woman quickly place an object underneath her that turned out to be a magazine containing cocaine. Mr. Daoud who happened to be sitting in the same waiting area was charged with possession of a controlled substance, although the officers had no reason to believe that Mr. Daoud had any knowledge of the cocaine. The case went to trial, and even though counsel did not argue the point, the trial judge found that assuming Mr. Daoud was arrested, which was surprisingly not clear, that his arrest was unlawful.

[50] In the case at bar, the arresting officers entered the House pursuant to a valid warrant to search for firearms i.e., more than one firearm. Appendix C to the warrant supports the position that there were a number of people in the House that threatened the intoxicated man with a gun and that likely, since they were all in the house together, that they were all equally complicit.

[51] Even if I assume that the arresting officers only had reasonable grounds to believe that there was one firearm in the House, asking everyone to come to the door for safety reasons and then arresting everyone in the House for possession of a firearm offences was reasonable in my view. The police were presented with a number of young people in a single-family house where there were reasonable grounds to believe there was a firearm. The Defence argument that police could only arrest someone in the House if they had first investigated the matter and knew that person was in possession or control of the firearm or was liable as a party is not a reasonable approach in a case like this. In my view, it would not be unreasonable on the facts of this case to assume that although only one person owned the firearm, that the others were aware of its presence, and were liable as parties. Unlike to facts in Mohammed and Daoud, the police had no evidence to suggest that the existence of the firearm they were searching for was only known to one of the persons in the House.

[52] For these reasons, I find that the officer who arrested Mr. Zeno not only subjectively believed, but also objectively had reasonable and probable grounds, to arrest Mr. Zeno for possession of a firearm and related offences. I note that there could be absolutely no issue about the arrest of Mr. Zeno based on the information set out in Appendix D which was known to DC MacIver who was present at the time of Mr. Zeno’s arrest.

Has the Crown proven that Mr. Zeno’s s. 10(b) Charter rights were not breached by the delay in contacting his lawyer?

[53] The s. 10(b) right to retain and instruct counsel has both an informational and implementation component. There is no issue about the informational duty in this case, but it is alleged that there was an unjustified delay in giving Mr. Zeno access to counsel. The law is clear and settled that s. 10(b) of the Charter requires police to implement the right to counsel without delay. This has been interpreted to mean immediately upon detention: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 at para. 41, R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24. As the Supreme Court stated in Taylor at para. 24:

The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances. [Citation omitted.] Whether a delay in facilitating access to counsel is reasonable is a factual inquiry. [Emphasis added]

[54] The right to counsel is a “lifeline” for detained persons. Through that lifeline, detained persons obtain not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated: R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135 at para. 45. In Rover, the court reviewed cases that have considered this issue and at para. 27, the court held that even where the circumstances justify a delay, such as police or public safety or the need to preserve evidence, police must take steps to minimize the delay in affording access to counsel.

[55] Accordingly, the onus is on the Crown to satisfy me that the two-hour delay of facilitating access by Mr. Zeno to duty counsel was reasonable in the circumstances.

[56] Mr. Fitzmaurice argued that there was no reason to hold Mr. Zeno at the House. Mr. Zeno was already under arrest and the arresting officer was not involved in the search of the House – his sole function at the scene was to transport the arrestees. Had PC Sheridan begun transporting Mr. Zeno immediately upon his arrest, Mr. Zeno would have had access to counsel much earlier. In R v Khan, 2019 ONSC 3442, Justice Copeland, as she then was, considered a s. 10(b) delay in these circumstances at para. 63, which applies equally to the case at bar:

And in the grand scheme of things, this is not a particularly long search. Imagine a longer search. Is a defendant just to wait on his opportunity to contact counsel because it is more convenient for the police to conduct the search? And if nothing is found, just let the defendant go?

[57] It was also argued that having decided to hold Mr. Zeno at the scene, PC Sheridan took no steps to facilitate Mr. Zeno's access to counsel by providing a phone to him at the scene. PC Sheridan did admit that he did not try to get a phone from anyone for Mr. Zeno. Mr. Fitzmaurice argued that PC Sheridan did not inquire whether Mr. Zeno had a cellular phone. However, PC Sheridan was not asked if he asked Mr. Zeno if he had a cell phone and there is no evidence before me that Mr. Zeno in fact had a cell phone in his possession at that time.

[58] It was argued that if an arresting officer believes that transportation to the police station will be delayed, he or she has a duty to take proactive steps to facilitate access to counsel at the place of arrest. Mr. Fitzmaurice referred to R. v. George, 187 C.C.C. (3d) (ONCA) at para. 42, the Ontario Court of Appeal held that even a delay of 15-20 minutes pending arrival of an approved screening device triggered the obligation of the detaining officer to take reasonable steps to facilitate the detainees access to counsel, including inquiring into whether the detainee had a cellphone that could be used to contact counsel at the roadside.

[59] If Mr. Zeno had a cell phone in his possession, I agree with Mr. Fitzmaurice that PC Sheridan should have allowed him to use that cell phone to call his counsel. Since Mr. Zeno was handcuffed, he could have been left in the scout car on his own while he called his lawyer to afford him with some privacy. I can’t make that finding however, as there is no evidence that Mr. Zeno had a cell phone. I do accept however that PC Sheridan failed to turn his mind to getting a phone for Mr. Zeno while was in the back of the police cruiser. If police are going to hold persons arrested during a search, then officers must have a work phone that can be used for this purpose. This became particularly important given the inevitable further delay when Mr. Zeno was transported to the police station, because as I have set out, as the last of the defendants to arrive, his access to counsel was delayed for a further hour and ten minutes as he waited to be paraded. In my view, the circumstances of having only one place to parade those arrested is not a specific circumstance that justified delay such a those reviewed in Rover, related to police safety or the preservation of evidence.

[60] For these reasons, I find that the delay in affording Mr. Zeno an opportunity to contact his counsel violated his right to access counsel immediately upon arrest as required by s. 10(b) of the Charter.

Has Mr. Zeno proven that the search of Cellphone #1 was unlawful and that, as a result, his s. 8 Charter rights were breached?

[61] The search warrant for the cell phones is a presumptively valid court order. Mr. Zeno therefore bears the onus of proving on a balance of probabilities that the search of Cellphone #1 was unlawful and in breach of s. 8 of the Charter.

(a) Does Mr. Zeno have standing?

[62] As I have set out, in the firearm trial before Justice Burstein, he found that Mr. Zeno had standing to challenge the search of all four of the cell phones. The case of Marakah that Burstein J. relied upon, was quite different in that it involved the exchange of texts, not a video posted on Snapchat. I do not accept that Mr. Zeno has proven a privacy interest in Cell Phone #1. However, I will assume for the purpose of this decision that Mr. Zeno does have standing to assert a privacy interest in the contents of Cell Phone #1, even though that was not his cell phone. In my view however, if Mr. Zeno does have a privacy interest in Cell Phone #1, he has a very low expectation of privacy as it belonged to someone else, and he was Snapchatting out similar videos including to the undercover officers.

(b) Should the warrant to search the cell phones have been issued?

[63] As I have stated, at the firearm trial before Burstein J., the Crown conceded that the ITO to search the cellphones was facially insufficient, and consequently, the search of the cellphones was unconstitutional. Mr. Fitzmaurice submitted that this was a sound concession. Mr. Zambonini disagreed but submitted that the more “efficient” argument is to consider s. 24(2) of the Charter. I am prepared to adopt that concession for the purpose of this application, although I do find based on his comments that Burstein J. could well have decided otherwise if he did not feel bound by the Crown’s concession.

[64] Accordingly, although I will not review the submissions made by Defence counsel with respect to this issue, I do point out that while Justice Burstein declined to permit Appendix D to be used as amplification evidence, Burstein J. did find that the failure to include it was an "investigative blunder" and that the information was known to the police at the time that the warrant was obtained, mitigating the unreasonableness of the search. As already stated, when considering the information in the ITO with Appendix D, Burstein J. was satisfied that the police had reasonable grounds to support the issuance of a warrant to search the cell phones and that as such, the s. 8 interest requiring the existence of probable grounds was respected in this case.

If there was a breach of Mr. Zeno’s ss. 8 and 10(b) Charter rights, should the phone evidence be excluded pursuant to s. 24(2) of the Charter?

[65] Section 24(2) of the Charter is triggered where evidence is "obtained in a manner" that violates a defendant's Charter rights. Having found that Mr. Zeno’s s. 10(b) Charter right was breached and accepting for the purpose of this application that there was also a s. 8 Charter breach, a s. 24(2) analysis is necessary as the videos from Cell Phone #1 were obtained as a result of a defective search warrant. I will also consider the possibility of a s. 9 breach in the event that my finding that Mr. Zeno was lawfully arrested is found to be wrong.

[66] Mr. Zambonini referred to R. v. Tim, 2022 SCC 12, [2022] S.C.J. No. 12 where the Court summarized the well-known principles to be applied on a s. 24(2) inquiry as follows:

74 Section 24(2) of the Charter is triggered where evidence is "obtained in a manner" that violates an accused's Charter rights. A s. 24(2) inquiry examines the impact of admitting evidence obtained in breach of the Charter on public confidence in the justice system over the long term, based on three lines of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused's Charter-protected interests; and (3) society's interest in the adjudication of the case on the merits. A court's task is to balance the assessments under these three lines of inquiry "to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute" (Grant, at para. 71; see also Le, at paras. 139-42).

75 Section 24(2) does not create an automatic exclusionary rule when evidence is obtained in breach of a Charter right. The accused bears the onus of establishing that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute. [citations omitted]

[67] With respect to the first factor, the seriousness of the Charter breach, I must consider whether the police engaged in misconduct from which the court should dissociate itself (see Grant, at para. 72). The concern of this inquiry is "not to punish the police", but rather to "preserve public confidence in the rule of law and its processes" (Grant, at para. 73). The court must situate the Charter-infringing conduct on a "spectrum" or a "scale of culpability" (Grant, at para. 74; Le, at para. 143).

[68] With respect to the s. 8 breach and potentially the s. 9 breach, normally these would be considered very serious breaches of the Charter, but on the facts of this case, I would situate these breaches at the less serious end of the scale of culpability for a number of reasons. First of all, I agree with Mr. Zambonini that there would be no issue with the arrest of Mr. Zeno and the searching of any of the cell phones on the basis of the information contained in Appendix D. Appendix D included the information that the undercover officers saw a Snapchat video of Mr. Zeno brandishing a gun that was clearly loaded that they reasonably believed to be real, and Mr. Zeno told the officers that he was inside the House with police outside and that there were “armed individuals” inside the House. Furthermore, Appendix D corroborated the information from Mr. Buni. This was also not information obtained as a result of the arrest and search. Rather, the information in Appendix D was known to DC MacIver at the time of the search of the House and the arrest of Mr. Zeno, and when the search warrant to search the cell phones was obtained.

[69] The fact Appendix D was not made known to the officers conducting the search of the House and DC Bowler who obtained the warrant to search the cell phones, was the decision of DC MacIver to protect the ongoing TPS investigation by the undercover officers. The failure of DC MacIver to make this information known to the officers conducting the search of the House, even though he was present at the search, and his failure to advise DC Bowler of that information so that it could be included in the ITO search warrant for the cell phones was unfortunate and accurately described by Burstein J. as an “investigational blunder”. It can be considered as an honest mistake, not a disregard of Charter rights. I find on the evidence of DC MacIver that he did not intend to mislead or deceive anyone, and that he was acting in good faith. The omission of Appendix D weakened the grounds presented in support of searching the cell phones. He and the officers involved in the search of the House, the arrest of Mr. Zeno, and DC Bowler were all acting in good faith and attempting to comply with all legal requirements during the course of the investigation. There was no attempt to take constitutional short cuts and the search of the cell phones was done pursuant to judicial authority.

[70] In considering the impact of these breaches on Mr. Zeno’s Charter protected rights, considering the information in Appendix D, there is no doubt that the arrest of Mr. Zeno was lawful and that the police had reasonable grounds to support the issuance of a warrant to search the cell phones. As such, the s. 8 and s. 9 rights were respected in this case, and this militates the impact on Mr. Zeno. There is as well my finding that Mr. Zeno’s expectation of privacy in the videos on the cell phones was diminished as Cell Phone #1 did not belong to him. I also note that the Defence was of the view that some of the videos on Cell Phone #1 were actually of assistance to the Defence in that they are consistent with Mr. Zeno’s position that he had no idea about the murder of Mr. Gayle when they went to a motel, and that he just wanted to party with Messrs. Adem and Ahmed.

[71] Turning to the breach of s. 10(b) of the Charter, I have found that the delay in affording Mr. Zeno an opportunity to contact his counsel violated his right to access counsel immediately upon arrest as required by s. 10(b) of the Charter. The only fact that militates the seriousness of this breach is that there was no attempt to obtain any statement from Mr. Zeno and the fact that there was no evidence before me that the issue that arose with the delay in processing Mr. Zeno once they arrived at the station is a regular occurrence. On the evidence before me, it was a situation that arose because of the fact that nine persons were arrested and brought to the station all at the same time.

[72] In R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350, Doherty J.A., speaking for the court, found that the breach of the defendant’s s. 10(b) rights was not the product of an improper police protocol, nor a systemic failure by the police involved in the investigation to meet their constitutional obligations. Rather, at para. 82, he held that it was a “situation-specific, isolated failure, albeit a serious one, by the officers who had custody of [the defendant] during the relevant time period”. Justice Doherty found this to be a crucial distinction notwithstanding the fact that there had been a clear unexplained violation of a long-established and well-understood constitutional obligation to give the defendant the right to speak to counsel over a four-hour period. Ultimately, he decided not to punish the police by excluding the drug and proceeds evidence obtained during the execution of a search warrant.

[73] I did not hear from Mr. Zeno as to how this delay impacted him, given he was not asked any questions, but as the court found in Rover at para. 45, the right to counsel is a “lifeline” for detained persons and the psychological value of access to counsel without delay should not be underestimated. This was a serious breach of the well-understood and settled law regarding the right to counsel. However, in my view, it had a moderate impact on Mr. Zeno’s Charter-protected interests. While the impact was not fleeting, technical, transient, or trivial, it was not profoundly intrusive either.

[74] Turning to the third factor; society's interest in the adjudication of the case on the merits, Mr. Fitzmaurice argued that exclusion of the videos from Cell Phone #1 would not gut the Crown’s case and that is true. However, although not critical to the Crown’s case, the video evidence is reliable and relevant to the Crown’s prosecution of a very serious offence. Ultimately, if not excluded, it will be the Crown's position that the videos inform to some degree, the nature of the relationship between Mr. Adem, Mr. Ahmed, and Mr. Zeno, to wit: they were not shy about criminality with each other and in fact seem to be laughing about it together. That in turn, the Crown would argue, provides some support for the proposition that when Mr. Zeno told the undercover officers that his friends had committed a murder and told him about the details of that murder and that he then assisted them by getting them out of the neighbourhood by getting them a motel room for the night, that he was telling the truth. Or, conversely, the videos could belie, to some degree, any potential testimony from Mr. Zeno to the effect that these men did not say a single word about the murder to him. For those reasons, I conclude that admission of the videos on Cell Phone #1 would better serve the truth-seeking function of this criminal trial than their exclusion.

[75] The final step in the s. 24(2) analysis involves balancing each of the three factors to assess the impact of admission or exclusion of the evidence on the long-term integrity of, and public confidence in, the administration of justice. The goal is not to punish the police, although the balancing must address systemic concerns: Tim at para. 98. I must focus on the overall repute of the justice system, viewed in the long term by a reasonable person, informed of all relevant circumstances and of the importance of Charter rights: Grant, at para. 68.

[76] In my view, the balance in this case clearly points towards the admission of the videos on Cell Phone #1 as evidence in this trial. Although the s. 10(b) breach was serious and showed an ignorance of Charter standards, no evidence was obtained because of that breach. The videos on Cell Phone #1 were obtained in breach of s. 8 and possibly s. 9 of the Charter, but given my findings and the existence of the information in Appendix D, excluding this evidence would simply punish the police, and in particular DC MacIver, for his mistake by failing to ensure the information in Appendix D was made known to the officer who arrested Mr. Zeno and DC Bowler. This is not the purpose of s. 24(2). In my view, in all the circumstances of this case, exclusion of these videos would do more to bring the administration of justice into disrepute than admitting them into evidence in this trial.

Disposition

[77] For these reasons, the application by Mr. Zeno asserting a breach of his ss. 8, 9 and 10(b) Charter rights is denied. As a result, I concluded that the video evidence from Cell Phone #1 would be admissible in this trial.

SPIES J. Date: May 3, 2023