COURT FILE NO.: 15627/21
DATE: 20230120
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Michael Bollers
Applicant
Meghan Tait, for the Respondent (Crown)
Josephine Baldassi, for the Applicant
HEARD: December 1, 2022
RULING ON CHARTER APPLICATON: Sections 8, 10 (b), 24 (1) and 24 (2)
WOODLEY, J.
OVERVIEW
[1] The Applicant, Michael Bollers, is charged with numerous offences relating to possession of firearms, drugs, domestic violence, and attempt to escape police custody. He alleges that in performing the searches and seizures of his residence the police violated his s. 8 Charter rights. The Applicant also alleges the police violated his right to counsel following arrest. As a result, the Applicant seeks a stay of the proceeding. Alternatively, the Applicant seeks exclusion of all evidence seized in the investigation.
[2] The Crown denies that the Applicant’s s. 8 or s. 10 (b) rights were violated, denies the Applicant is entitled to a stay of proceedings, and denies that any evidence seized should be excluded. Alternatively, the Crown submits if the Applicant’s s. 8 or s. 10 (b) Charter rights were breached, any breach found is not serious, and there should be no stay of the proceedings nor any exclusion of evidence.
[3] For the reasons that follow, I find no violation of the Applicant’s s. 8 Charter rights and while I find one breach of the Applicant’s s. 10 (b) Charter rights, the breach was unintentional and not serious. In the circumstances, no stay of proceedings is warranted under s. 24(1), nor is any evidence excluded under s. 24(2) of the Charter.
THE ISSUES
[4] The issues to be determined are whether the Applicant’s section 8 and/or 10(b) Charter rights were breached, and if so, whether the matter should be stayed or the evidence, or any part of it, excluded.
THE FACTS
[5] On February 2, 2021, the complainant Mia Hatch attended before DRPS officers and provided a lengthy statement that alleged that the Applicant had perpetrated various incidents of domestic abuse against her, had uttered death threats against her and her family, and possessed a black handgun, ammunition, an extended magazine, and a drum magazine, and she was greatly fearful for the life and safety of herself and her family.
[6] By her statement, Ms. Hatch alleged that the Applicant always had the handgun on his person whenever he left his apartment, and otherwise kept the gun and related items in the bedroom of his apartment located at 314 – 822 Glen Street, Oshawa, Ontario. Ms. Hatch advised that the Applicant lived with his mother in unit 314 and that his brother lived in the neighbouring unit, apartment 311 – 822 Glen Street, Oshawa, Ontario.
[7] Following receipt of Ms. Hatch’s statement, the DRPS put safety measures in place to protect Ms. Hatch and her family and enlisted several DRPS units to “locate, identify, and arrest” the Applicant “when it was safe to do so”.
[8] As the police believed that they had received credible information that the Applicant possessed a handgun with extended magazines and ammunition, the police determined that it was not safe to arrest the Applicant inside his apartment or apartment building located at 314 - 822 Glen Street, Oshawa. The police believed that an arrest inside the apartment or building would pose a serious threat to the safety of the Applicant, the police and the public if he were arrested inside his building.
[9] Due to these safety concerns, the police determined the Applicant would be arrested immediately upon exiting his apartment building. This plan, arrest upon exit, was considered the safest option in the circumstances.
[10] In furtherance of execution of the plan to “locate, identify, and arrest” the Applicant immediately upon exiting 822 Glen Street, Oshawa, the DRPS obtained and/or utilized the following investigative tools:
(i) Emergency pings from the Applicant’s mobile phone provider (Telus) based on exigent circumstances which pings were used initially to track the location of the Applicant’s mobile phone;
(ii) A tracking warrant issued on February 3, 2021, by Justice of the Peace Macdonald, that required Telus to track the location of the Applicant’s mobile phone, valid for 60 days;
(iii) Permission from the superintendent of 822 Glen Street, Oshawa, to use his private office to view the video surveillance for 822 Glen Street (past and present) to enable observation of the entry and exit points of the building and elevators servicing the building;
(iii) A general warrant issued on February 3, 2021, by Justice of the Peace Zito authorizing the search of the Applicant’s apartment at 314-822 Glen Street, Oshawa, valid from February 3, 2021, at 5:20 am to 11:30 pm, (which warrant was not executed);
(iv) A general warrant issued on February 4, 2021, by Justice of the Peace Zito authorizing the search of the Applicant’s apartment at 314-822 Glen Street, Oshawa, valid from February 4, 2021, at 3:35 am to 6 am, (which warrant was not executed); and
(v) A general warrant issued on February 4, 2021, by Justice of the Peace Zito authorizing the search of the Applicant’s apartment at 314-822 Glen Street, Oshawa, valid from February 4, 2021 at 10:45 pm to February 5, 2021 at 1 am (which warrant was executed).
[11] On February 2, 2021, following receipt of Ms. Hatch’s police statement, the police began to search for the Applicant. Surveillance began at 8:37 pm at the Applicant’s apartment building. However, despite efforts, the Applicant was not surveilled returning to his apartment building and the police were not able to locate him.
[12] On February 3, 2021, members of the DRPS Offender Management Unit (OMU), including DC Chambers, continued surveillance initially starting at his residence.
Facts Relating to Emergency Pings and the Tracking Warrant
[13] At the request of the Domestic Violence Unit (DMU), seeking to locate the Applicant, the police obtained two pings on the Applicant’s cell phone (437-345-0368) based on exigent circumstances, at the request of DC Adepegba. The first ping was done at 5:49 am and the second at 6:15 am.
[14] At 8:55 am, 9:15 am, 12:39 pm and 4:14 pm, four more emergency pings were obtained by DC Sitaram who telephoned Telus Mobility who provided the coordinates of the pinged phone.
[15] At 4:05 pm the tracking warrant was authorized. The warrant was provided to Telus after the 6:14 pm ping.
[16] Following receipt of the tracking warrant, three further pings were obtained at 5:42 pm, 7:07 pm and 8:00 pm. Telus advised that the phone was in a 4.4 km radius of 940 Townline Road South. The police believed that the phone was off since all three pings had the same result.
[17] Two other pings were noted in the duty book notes of DC Laloo and DC Tanner. These pings are recorded as being done at 2:58 pm and 6:40 pm, in the area of Cordova Avenue.
[18] Five pings were done pursuant to the tracking warrant. The results of the pings provided a general radius, within several kilometers of the location of the Applicant’s phone. The pings assisted with confirming information obtained through surveillance. However, the police did not locate the Applicant using the pings obtained from the Applicant’s cell phone data.
[19] The police believed that three of the pings noted as 5:42 pm, 7:07 pm, and 8:00 pm were done while the phone was off. As for the other two pings noted by DC Laloo and Tanner, at 2:58 pm and 6:40 pm, while only a general radius was provided, these pings were in the approximate vicinity of the Applicant’s apartment and utilized by the police as secondary confirmation of information obtained from police surveillance that the Applicant was likely inside his apartment.
Facts Relating to the Surveillance and Arrest of the Applicant
The First Team: February 2, 2021 – February 3, 2021
[20] On February 2, 2021, at 7:30 pm, DC Micallef telephoned DC Griffin and provided him with a briefing summarizing Ms. Hatch’s police statement. DC Micallef requested that the Applicant be surveilled and further requested that DC Griffin begin the process to obtain a search warrant authorizing the search the Applicant’s apartment.
[21] At 7:50 pm, PC Griffin conducted a briefing with PC Elliott, PC Mantza, PC Sword, PC Ferreira, and Sgt. Fisher. The objective of the briefing was to provide the team with information necessary to conduct surveillance and locate the Applicant. Once the Applicant was located the team was to await further directions.
[22] At 8:45 pm, the above noted team (the “first team”) began surveillance in the area of the Applicant’s apartment building located at 822 Glen Street, Oshawa, Ontario.
[23] At 1:11 am on February 3, 2021, officers from the first team observed a “black male party”, however, no officer was able to positively identify the Applicant as being the “black male party”.
[24] The first team ended surveillance at 6:05 am on February 3, 2021, without having positively identified or located the Applicant.
The Second Team: February 3, 2021
[25] On February 3, 2021, officers from the OMU took over surveillance duties of the Applicant (the “second team”). The second team consisted of DC Cook, DC Capener, DC Horner, DC Laloo, DC Tanner, and PC Ledwidge.
[26] At 7:50 am, DC Chambers met with DC Micallef, DC Adepegba, DC Sitaram, and DC Griffin.
[27] At 8:20 am, DC Chambers briefed the second team and advised that the objective was to locate and conduct surveillance of the Applicant.
[28] At 8:48 am, it was confirmed that members of the Tactical Support Unit (TSU) would assist when needed but were not available at that time.
[29] On February 3, 2021, surveillance by the second team began at 9:24 am and ended at 11:17 pm.
[30] Throughout the day, the second team made various observations of vehicles coming and going from the Applicant’s apartment building. However, despite attempts to locate the Applicant, and pings made on the Applicant’s phone, no officer from the second team physically observed the Applicant (in person) at any time on February 3, 2021.
[31] The only officer from the second team to observe the Applicant was DC Horner, who did not observe the Applicant in person but through a review of the Applicant’s apartment video surveillance tapes.
[32] As noted, from 9:24 am the second team had been conducting surveillance to identify and locate the Applicant. As no officer had identified or located the Applicant, at 8:30 pm DC Horner spoke to the superintendent of the Applicant’s apartment building Mr. McArthur seeking consent for officers to view the building surveillance footage. Mr. McArthur provided consent to view the video surveillance and allowed DC Horner to attend inside his office to accommodate this request.
[33] Mr. McArthur testified that he had full authority to consent to DC Horner’s request and had authority to allow the police to enter the apartment building for that purpose. Mr. McArthur been the superintendent of the Applicant’s building located at 822 Glen Street, Oshawa, for approximately six years. He testified that the building had security cameras, and an intercom system, and tenants can permit anyone they want to enter the building. Mr. McArthur advised that the cameras are in the lobby, vestibule, in the awning of the building, in the rear of the building, and in the elevators. There is also a camera on each floor outside the elevators.
[34] Mr. McArthur testified that the cameras were installed by the owners and the monitoring station is inside his (Mr. McArthur’s) office. Mr. McArthur is the person responsible for the cameras and he controls them. The cameras are clearly visible to all and there are signs in the building advising the residents of the presence of the cameras. The cameras only record if there is movement in front of the camera.
[35] As noted, Mr. McArthur testified that he is the person authorized to provide consent to enter the building and view the security cameras and video footage and in the present case he did consent to allow the police to view the surveillance cameras. Mr. McArthur testified that he always cooperates and allows the police to view the cameras and footage when asked. DC Horner and Mr. McArthur confirmed that consent was sought and given by Mr. McArthur for the police to enter the building and review surveillance (both past and ongoing). DC Horner and Mr. McArthur testified that Mr. McArthur’s consent was freely given and there were no threats or coercion attached to the request.
[36] Once consent to review the videotape footage was allowed, Mr. McArthur accompanied DC Horner to his office where DC Horner began reviewing the prior video footage. DC Horner testified that when reviewing the past footage for February 3, 2021, he noted that at 4:38 pm (approximately 5 hours prior), a male he believed to be the Applicant was captured on the video footage entering the building and make his way to the 3rd floor (the Applicant’s floor). DC Horner reviewed the video footage from 4:38 pm to the then present time and did not observe the Applicant exiting the building or appearing anywhere else on the video footage.
[37] Based on DC Horner’s review of the February 3 footage from 4:38 pm to the (then) present time (approximately 9 pm), DC Horner believed that the Applicant remained somewhere inside the building.
[38] Members of the OMU continued surveillance of the apartment building into the late evening. There were two suspected sightings of the Applicant attending the complainant’s home in an Uber. However, the Applicant was not positively identified, and no arrest was made on February 3, 2021.
[39] The second team went off shift at 11:17 pm. As there was no available team to take over, surveillance ended for the day at that time.
February 4, 2021
[40] On February 4, 2021, the second team returned to their station at 8 am and received a further briefing. The second team was advised that the objective was to locate the Applicant, conduct surveillance, and arrest “if it was safe to do so”.
[41] Members of the TSU were present with the second team to assist including: DC Byers, DC Elliott, DC Hart, DC Parro, DC Kathnelson and DC Running.
[42] At 8:46 am, PC Ledwidge spoke to the building superintendent, Mr. McArthur, and sought further permission for the police to enter and continue to monitor the video surveillance.
[43] PC Ledwidge and Mr. McArthur testified that further authorization to allow police to enter and review and monitor video surveillance was granted by Mr. McArthur. Mr. McArthur testified that he had no concerns with the police presence or their reasons for wishing to review the surveillance and his consent was freely granted.
[44] At 9:27 am, DC Horner returned to Mr. McArthur’s office and reviewed the video footage from the previous evening.
[45] At 9:42 am DC Horner confirmed to the second team that he believed that the Applicant was still inside the building.
[46] PC Ledwidge joined DC Horner in Mr. McArthur’s office to assist with the monitoring of the video surveillance. Mr. McArthur testified that he had no concerns with the police presence in his office and that at times he was present with the police and at other times he was out and about attending to his duties.
[47] Mr. McArthur testified that he consented to the police attending inside the building and inside his office to allow them to view the surveillance at their leisure and as they wished. Mr. McArthur testified that he did not feel any need to stay and supervise the police activities. He stated that he gave the police free reign to conduct their business.
[48] As DC Horner notified the team that the Applicant was believed to be inside the apartment building, a plan of arrest was determined that officers would attempt to arrest the Applicant in the parking lot upon exit from the building.
[49] To accomplish this plan, officers were stationed at the front and rear exits to the building as well as inside the superintendent’s office to enable live surveillance of the video feed. The goal was to locate, identify, and arrest the Applicant in the parking lot upon exiting 822 Glen Street.
[50] The police provided evidence that the following observations were made on February 4, 2021, of a male believed to be the Applicant:
a. At 3:02 pm a male, possibly Bollers, wearing a blue du rag or hat, was observed looking outside the window to the east from unit 314;
b. At 3:08 pm, a male possibly Bollers, was observed looking outside the window with a phone; and
c. At 3:25 pm, Bollers, was observed on the balcony looking around.
[51] At 4:23 pm, a further briefing was held with members from the OMU and the TSU. The briefing included DC Byers, DC Elliott, DC Hart, and DC Parro. Officers were advised that the Applicant’s brother’s unit was in the same building as the Applicant. Officers were directed to continue to closely watch for the Applicant and arrest him upon his exit from the building. DC Byers and DC Hart were then tasked to join PC Ledwidge and DC Horner in the superintendent’s office.
[52] Shortly prior to 7:47 pm, police officers, DC Byers, DC Horner, and PC Ledwidge observed the Applicant enter the lobby of the building on the video surveillance. This viewing occurred in the presence of, and with the continued permission of, Mr. McArthur.
[53] At approximately 7:47 pm, the Applicant was positively identified exiting the building at 822 Glen Street attempting to enter a taxi waiting outside and was apprehended by DC Byers and DC Hart of the TSU.
Facts Relating to the Delay in Informing and/or Implementing Right to Counsel
[54] At approximately 7:50 pm, on February 4, 2021, the Applicant was arrested. DC Byers and DC Hart testified that at the time of his arrest, the Applicant struggled, was striking out at the officers, and attempted to grab DC Hart’s radio. DC Byers and DC Hart testified that in their view and based on their experience the Applicant was intentionally creating a scene and yelling in the direction of the building, towards his brother’s balcony.
[55] DC Elliott testified that he went to assist DC Byers and DC Hart with the arrest and noted that the Applicant was resisting arrest and pulling his hands under his chest. DC Elliott, DC Byers, and DC Hart all testified that the Applicant was screaming but none could make out the words he was saying.
[56] DC Elliott testified that the Applicant was “yelling at the top of his lungs that he couldn’t breathe, was also complaining of a broken leg, and was also yelling up to one of the balconies where his mother was”. DC Elliott said he knew the Applicant was yelling to his mother because the Applicant had “his head, or his eyes pointing in the direction (of the balcony) and then his mom was looking back down at him”. DC Elliott confirmed that he saw the Applicant’s mother on the balcony of the apartment.
[57] All officers present who testified stated that they believed that the Applicant was trying to alert his mother or his brother of his arrest with the intent that any evidence in the Applicant’s apartment would be lost or destroyed.
[58] PC Ledwidge was also present but did not put hands on the Applicant. PC Ledwidge testified that there was “quite a commotion” at the time of the arrest. The Applicant was “screaming and shouting and effectively resisting arrest at that point. And there was a bunch of onlookers coming out to their balconies and looking through their windows and it appeared as if Mr. Bollers was trying to attract their attention at that time”.
[59] After DC Byers, DC Hart, and DC Elliott obtained control of the Applicant, they completed a search of his person incident to arrest. No handgun was found on the Applicant at the time of his arrest.
[60] The Applicant was turned over to PC Ledwidge at approximately 7:55 pm along with the property found on his person. The Applicant was complaining loudly of being injured, stating that he was having trouble breathing and had a leg injury. The Tactical Support Team’s medics then assessed and cleared the Applicant.
[61] At 8:01 pm, once the Applicant had been medically cleared, PC Ledwidge walked the Applicant over to the marked cruiser where PC Hristov and PC Haigh were waiting to transport the Applicant to the police station. PC Ledwidge handed PC Haigh the property seized from the person of the Applicant and PC Haigh placed the clear evidence bag in her police cruiser. PC Haigh testified that the property seized from the Applicant’s person was a cell phone, a piece of fabric, and some unidentified drugs. The Applicant was searched by PC Haigh to ensure he had no weapons on him and then placed in the police cruiser at 8:03 pm.
[62] At approximately 8:04 pm, PC Ledwidge advised the Applicant that he was being arrested for assault, assault causing bodily harm, forcible confinement x 2, assault with a weapon, uttering threats x 2, possession of a weapon for a dangerous purpose x 2, possession of a firearm contrary to a prohibition order x 2, breach of release order x 3, and fail to comply with probation x 4. PC Ledwidge testified that he also advised the Applicant that there may be possible further charges based on the search warrant that was being executed.
[63] At 8:07 pm, PC Ledwidge read the Applicant his rights to counsel and caution once he was in the rear of the police cruiser. PC Ledwidge testified that he read the rights and caution straight from his duty book.
[64] PC Haigh testified that the right to counsel and caution was read in her presence, and she noted the time in her duty book. PC Haigh testified that the Applicant responded “yes” to understanding and advised that he wanted to speak to his lawyer but could not recall his lawyer’s name at that time.
Facts Relating to Claim Police Delayed Implementation of the Right to Counsel
[65] At 8:13 pm PC Hristov and PC Haigh began transporting the Applicant to the station. Both officers testified that the Applicant was moaning and complaining of having chest pain and nausea. Both officers testified that the Applicant was breathing heavily and at one point PC Hristov flashed his light on the Applicant’s face to ensure he was conscious. As a result of the Applicant’s complaints, PC Hristov called the cell Sargent and determined that the Applicant would be taken to the Lakeridge Health Hospital in Oshawa to be medically cleared prior to taking him to the station.
[66] At 8:20 pm, PC Hristov and PC Haigh arrived with the Applicant at the Lakeridge Health Oshawa Hospital.
[67] PC Hristov and PC Haigh testified that they escorted the Applicant to the designated waiting area near the ambulance bay station which is where they stayed for his medical assessment. When they arrived, the Applicant requested that his handcuffs be moved to the front as he claimed his arm felt broken. The Applicant also claimed to be in a lot of pain and stated that he was dizzy. PC Hristov and PC Haigh complied with the Applicant’s request and moved his handcuffs to the front of his person.
[68] At 8:25 pm the Applicant was triaged by the nurse. While waiting for the medical staff to x-ray his arm, the Applicant requested water and to use the washroom. Both requests were facilitated.
[69] At 8:49 pm the Applicant was escorted to the washroom which was approximately 10 feet from the nurse’s station. PC Hristov stood by while the Applicant used the washroom.
[70] At approximately 9:00 pm, the officers escorted the Applicant to the x-ray station located on the opposite side of the hospital on the main floor.
[71] At approximately 9:06 pm, the Applicant advised PC Hristov and PC Haigh that his lawyer of choice was “Hussain Aly”. Immediately upon being advised of this information, PC Hristov telephoned PC Ledwidge and advised him that the Applicant’s lawyer of choice was “Hussain Aly”. PC Ledwidge was present at the police station and made a notation of the time and content of his conversation with PC Hristov. PC Ledwidge then conducted a Google search of Mr. Aly and through that search located a phone number.
[72] At approximately 9:18 pm, the x-rays were completed, and the officers escorted the Applicant back to the designated seating area.
[73] At 9:49 pm the charge nurse spoke to the Applicant and advised that the x-ray confirmed that he had no broken bones. The Applicant was prescribed Toradol, which PC Haigh stated was like Advil. He was provided one pill for pain which PC Haigh witnessed him ingest.
[74] At 9:54 pm, while the Applicant was still at the hospital, PC Ledwidge successfully contacted an associate of Mr. Aly who provided him with the direct cell phone number for Mr. Aly. PC Ledwidge then called the cell number but was not able to speak to Mr. Aly and so he left a voicemail message with him. PC Ledwidge also located an email address for Mr. Aly and sent an email advising that Mr. Bollers was in custody and looking to speak to him.
[75] Back at the hospital, after the nurse informed the Applicant that he had no broken bones, the Applicant urged that he was not provided an x-ray for his leg and began complaining of pain running up and down his leg. The nurse consulted with the doctor, returned shortly thereafter, and advised that the doctor was “confident” that the Applicant’s leg did not need x-rays. The Applicant was medically cleared to leave the hospital.
[76] PC Haigh testified that when the Applicant was medically cleared, the intention was to transport him to the police station and provide him with the opportunity to implement his right to counsel. Both PC Haigh and PC Hristov testified that they were not comfortable allowing the Applicant to implement his right to counsel while at the hospital because they could not afford him privacy without compromising security. Further, both officers stated that they were focused on tending to the Applicant’s medical needs given his very vocal complaints and were of the view that his medical needs were paramount.
[77] When the nurse advised that the Applicant was medically cleared, PC Haigh and PC Hristov attempted to escort the Applicant to the police cruiser. However, the Applicant began to “whimper” and “yell” that he was unable to walk due to the injury to his leg. PC Hristov directed the Applicant to start walking. The Applicant continued to complain and advised he was too injured from the arrest to walk.
[78] As a result of the Applicant’s complaints, PC Hristov left PC Haigh alone with the Applicant with the intent to bring the cruiser closer to spare the Applicant walking.
[79] PC Haigh testified that she held the Applicant by his right arm. When PC Hristov left, the Applicant bent down, held his leg, and began to whimper as if in pain. As PC Haigh turned to walk the Applicant to the cruiser, the Applicant turned away from her, pulled out of her grip, and sprinted down the main floor hallway of Lakeridge Health Oshawa Hospital.
[80] PC Haigh chased the Applicant down the hallway while the Applicant proceeded to throw hospital equipment to the ground as she was chasing him. The foot pursuit continued while PC Hristov alerted other officers in the area by radio that they were in foot pursuit of the Applicant. Sometime during the foot pursuit, PC Haigh heard PC Hristov behind her announcing the foot pursuit while he was running. PC Haigh and PC Hristov continued to chase the Applicant through the main floor of the hospital, took several turns. The Applicant continued to use hospital equipment to stop them from catching him which he was able to do as his handcuffs were secured in the front as per his request. The Applicant ran into a stairwell and the officers were able to catch him. PC Haigh and PC Hristov held him on the ground to secure him.
[81] Shortly after capturing the Applicant, hospital security attended and assisted securing the Applicant. Multiple other officers from DRPS, including Tactical Support officers also attended to ensure that everything was stable.
[82] At approximately 10:06 pm, Officers Hristov and Haigh returned the Applicant to their police cruiser and began their transport to the police station.
[83] At approximately 10:08 pm, PC Hristov, PC Haig and the Applicant arrived at the police station. The Applicant was processed, booked, and advised that he was also likely being charged with escape lawful custody, assault with intent to resist arrest, obstructing police during the booking process.
[84] After speaking to the Applicant, the booking Sargent confirmed that the Applicant understood the charges he had been previously charged with. The Applicant confirmed during the booking process he had been read his rights to counsel once already and wanted to speak to Mr. Aly.
[85] At approximately 10:27 pm, during the booking process, the Applicant was asked to confirm the spelling of his lawyer of choice.
[86] At approximately 10:32 pm, the booking process was completed.
[87] At approximately 10:52 pm, PC Haigh attended the Applicant’s cell and advised that he was being charged because of the incident in the hospital with the additional charges of obstruct police, escape lawful custody and assault with intent to resist arrest. PC Haigh then read the Applicant his rights to counsel relating to the additional charges, from her memo book and the caution. The Applicant stated that he understood. PC Haigh also asked if the Applicant would like to speak to a lawyer and he said yes, Hussain Aly.
[88] At 11:20 pm, PC Hristov was able to reach Mr. Aly and the Applicant was provided with an opportunity to speak to his lawyer of choice in his cells.
Facts Relating to Claim that No Further Rights were Read After Further Charges Laid
[89] The Applicant was initially arrested at the scene at 7:50 pm for assault, assault cause bodily harm, forcible confinement x 2, assault with a weapon, uttering death threats x 2, possession of a weapon for a dangerous purpose x 2, possession of a firearm contrary to a prohibition order x 2, breach of release order x 3, fail to comply with probation x 4. The Applicant was read his rights to counsel in relation to those charges at 8:04 pm.
[90] At 10:52 pm, PC Haigh advised the Applicant that he was also being charged with obstruct police, escape lawful custody, assault with intent to resist arrest and one count of breach of probation. PC Haigh testified that she read his rights to counsel in relation to those charges at 10:52 pm from her duty book. The Applicant confirmed he wished to speak to his lawyer relating to the charges.
[91] At 11:02 pm, PC Haigh collected the unidentified drug that was in the clear evidence bag. Shortly thereafter, PC Haigh returned to the Applicant’s cell with her partner PC Hristov and advised the Applicant of an additional Schedule 1 substance charge and a possible breach of recognizance.
[92] PC Haigh does not have any notes in her duty book that she read the Applicant his rights to counsel at that time. PC Haigh does not recall whether she read the Applicant his rights to counsel at that time. During cross-examination PC Haigh testified “I did not read him rights to counsel in regard to the substance charge…I don’t have any notes about asking if he spoke to his lawyer at that time”.
[93] As noted, at 11:20 pm, PC Hristov was able to reach Mr. Aly and the Applicant was provided with an opportunity to speak to his lawyer of choice in his cells. Despite prior attempts, this was the first time that officers were able to connect with Mr. Aly.
[94] There is a further note relating to the Applicant’s right to counsel which appears in PC Ledwidge’s Arrest Charge Report which states “in and out of cells on 4 February 2021 23:55 (11:55 pm) Reason – phone a lawyer.
[95] At 11:58 pm, PC Haigh and PC Hristov weighed the unidentified drugs seized from the Applicant’s person and noted that the drugs weighed 0.3 grams. The bag was then tagged, and the tag number was noted on a property report completed by PC Haigh. The description of the drug was a white powdery substance, with a common name of meth, or methamphetamine.
[96] DC Adepegba testified that although not on duty as the officer in charge he received a call when the Applicant was arrested on February 4, 2021.
[97] At approximately 12:59 am on February 5, 2021, the search of the Applicant’s apartment was completed.
[98] At 4:05 am on February 5, 2021, DC Adepegba attended the Applicant’s cell and informed him of the two additional drug charges relating to the search and provided the Applicant with his rights to counsel and caution.
[99] At 4:15 am, DC Adepegba re-attended the Applicant’s cell to advise the Applicant that his lawyer (Mr. Aly) had not returned his call.
Facts Relating to the Search of the Apartment Prior to Issuance of Search Warrant
[100] On February 4, 2021, at 7:55 pm, being the time of the Applicant’s arrest, the police were aware that the Applicant’s mother was inside the apartment and his brother lived in a neighbouring unit.
[101] DC Elliott (amongst other officers) testified that the Applicant was “yelling at the top of his lungs that he couldn’t breathe. And he was also complaining of a broken leg. And was also yelling up to one of the balconies where his mother was”.
[102] DC Elliott (amongst other officers) testified stated that he believed that the Applicant was trying to alert his mother or his brother of his arrest with the intent that any evidence in the Applicant’s apartment would be lost or destroyed.
[103] DC Chambers testified that fact that the Applicant lived with his mother and that his brother lived in a neighbouring unit caused great concern as to the preservation of the evidence in the event there was a disturbance upon arrest.
[104] DC Chambers testified that he discussed the security issues with the Sergeant of the TSU, including the fact that the Applicant was known to carry a handgun, and it was agreed that two Tactical Support officers would wait inside the superintendent’s office to affect the takedown. For these reasons, DC Byers and DC Hart waited inside the building monitoring the security cameras with PC Ledwidge.
[105] DC Chambers testified that when the Applicant was arrested, he was “shouting, yelling, making a scene, making a disturbance”. DC Chambers testified that his first instinct was that the Applicant was trying to alert anybody that potentially was in his unit or on his floor to alert them that he was being arrested as this behavior was consistent with his past experiences as an officer.
[106] Due to the Applicant’s behavior, DC Chambers directed DC Laloo to assemble a team and attend immediately to the unit with the TSU.
[107] The officers entered through the front door which he believes was open and DC Chambers remained with PC Ledwidge and arranged the transport of the Applicant.
[108] At 7:59 pm DC Elliott attended the Applicant’s apartment with other members of the TSU. The TSU were requested by the OMU to clear the apartment under exigent circumstances due to preservation of evidence concerns.
[109] At the time of the arrest DC Laloo was inside his cruiser with DC Parro from the TSU officer. After exiting his cruiser and making his way to the front of the apartment building, DC Laloo observed the Applicant on the ground yelling and screaming in the direction of his residence, or his brother’s residence “we believe” at that time. DC Laloo testified that his concern and those of his fellow officers was the potential that the firearm could be moved out of the Applicant’s residence. DC Parro echoed these concerns.
[110] DC Parro testified that the Applicant was “making a scene. He was screaming, yelling up to his brother…I know he was calling for his brother. I can’t exactly recall what was said”.
[111] DC Parro testified that “there was concern for the destruction of evidence in the apartment or if not the destruction, the removal of evidence. So, at that time DC Laloo, fellow OMU members and members of the TSU attended to unit 314”.
[112] DC Laloo testified that upon exiting the elevator they began walking towards unit 314 when he observed the Applicant’s brother exit his apartment (311) and walk towards apartment 314.
[113] DC Laloo questioned the Applicant’s brother where he was going, and he responded that he was going to “see him mom” (i.e., to the Applicant’s apartment 314).
[114] DC Laloo advised the Applicant’s brother that he was not allowed in the apartment as it was going to be “frozen”, and no one was allowed in or out of that residence.
[115] On February 4, 2021, at 8:05 pm, DC Elliott from the TSU knocked on the Applicant’s door several times, but there was no answer. The Applicant’s brother was present in the hallway with the police and telephoned his mother. DC Elliott continued to knock on the door.
[116] At 8:07 pm the Applicant’s mother came to the door. DC Elliott testified that the woman who answered the door was the same woman he had seen on the balcony.
[117] DC Elliott asked the Applicant’s mother to step out of the apartment and then advised her of their intention to enter the apartment and look for suspects and hold the apartment until a search warrant was granted. DC Laloo testified that he also explained why they were there and asked if they could enter. DC Laloo testified that the Applicant’s mother was cooperative and said yes.
[118] DC Elliott testified that the Applicant’s mother stood with the officers from the OMU while DC Elliott and other members of the TSU entered to make “sure there was no further occupants inside”.
[119] At approximately 8:07 pm, Officer Elliott and a few other members of the TSU entered the apartment to perform a safety search looking only for suspects. The TSU went room by room to clear the apartment as a team. The clear was completed at approximately 8:08 pm, or in one minute.
[120] DC Elliott testified that the clear was done to ensure the safety of officer holding, safety of any occupants, and for the preservation of evidence pending the issuance of a search warrant (which was being actively sought by DC Griffins). The apartment was then turned over to the OMU and the TSU left the apartment.
[121] The police testified that they entered the unit to solely to ensure that no other parties were inside the unit to secure it pending issuance of the search warrant.
[122] At 8:09 pm, after the safety search was completed by the TSU, the apartment was returned to the OMU. The TSU exited the building.
[123] The Applicant’s mother then requested to be permitted to wait inside her apartment.
[124] DC Laloo stated that he had offered Mrs. Bollers other places to wait but she said she wanted to go back inside. As a result, “4 or 5” members of the OMU waited with Mrs. Bollers in her living room until they were relieved by the 18-Division unit.
[125] DC Laloo testified that while inside the apartment, the OMU officers did not go anywhere other than the living room and the hallway. No search was conducted of the unit and no property was seized at this time. The officers remained to “keep observations of Mrs. Bollers at this time as there is still an outstanding firearm potentially inside that unit”.
[126] At approximately 9:10 pm the unit was turned over to 18-Division unit who held the apartment until the search warrant was obtained.
[127] PC Patterson from the 18-Division unit, testified that on February 4, 2021, he was assigned to the Community Response Unit and that his team consisted of PC Sheppard, PC Gouldby, and PC Hutcheson. On this date PC Patterson was briefed by DC Rhoden of the DVU of the investigation and advised that his team was required to assist.
[128] At 9:10 pm PC Patterson attended apartment 314 – 822 Glen Street to take possession of the unit. Prior to entering the apartment, PC Patterson was advised that the apartment had been cleared and there was one occupant who remained at the residence, Mrs. Bollers.
[129] PC Patterson together with PC Sheppard and PC Hutcheson assumed possession of the unit waiting receipt of the search warrant. PC Patterson testified that they offered Mrs. Bollers the option to leave, and she chose to stay.
[130] The officers remained in the living room with Mrs. Bollers while she watched television. PC Patterson testified that no one went anywhere else in the apartment and no search was made of the apartment by him or his team from 18-Division.
[131] At 10:35 pm PC Patterson received information that the warrant had been approved for the residence. PC Patterson advised Mrs. Bollers of this information.
[132] At 11:14 pm, PC Gouldby arrived on scene with a physical copy of the warrant.
[133] PC Patterson testified that for the entire time that he and his team assumed control of the apartment to the time the warrant arrived, no search of any kind was made of the apartment. The police merely secured the residence to preserve evidence.
[134] PC Patterson provided Mrs. Bollers with a copy of the warrant and explained it to her. PC Patterson testified that Mrs. Bollers understood the search warrant. After providing a copy of the warrant and explaining its contents, Mrs. Bollers remained on the couch and the police began the search of the residence.
[135] During the search the police located a black handgun, ammunition, an extended magazine, an extended drum magazine, and various illegal substances in the Applicant’s bedroom.
Facts Relating to the Return to Justice Prepared by PC Haigh signed by PC Beukeboom
[136] When the Applicant was arrested and searched incident to arrest the items seized from his person were accounted for in a Report to Justice prepared by PC Haigh.
[137] The Report to Justice was completed by PC Haigh on February 11, 2021, at 8:01 pm. However, PC Haigh was a newly hired recruit and had not yet “obtained an e-signature” for submitting evidence. For this reason, PC Haigh requested officer PC Beukeboom to assist her by authorizing her signature on the Report to Justice. The Report to Justice was completed in full by PC Haigh who noted on the last line of the Report, “in conclusion, PC Beukeboom number 3094 authorized his signature due to myself, PC Haigh, not having a PKI signature as I am a new recruit”.
[138] Following completion of the Report to Justice, and on September 24, 2021, PC Beukeboom authored a Supplementary Report, that stated that he “did not have any notes for this incident”.
[139] PC Haigh testified that she did speak to PC Beukeboom and specifically recalls speaking to him because she did not have a signature and he assisted her with signing the document. During cross-examination PC Haigh agreed that the Report to Justice as prepared by her dated February 11, 2021, contains two errors: (i) the document states that she searched the Applicant on February 11, 2021, at 8:01 pm – it should read February 4, 2021; and (ii) PC Beukeboom’s signature is dated March 6, 2021, and should read as per the date stamp of February 11, 2021. PC Haigh also agreed with counsel that there was a “possibility” that she mixed up the Report with another investigation.
POSITIONS OF THE PARTIES
Position of the Applicant
[140] The issues to be determined are limited to a review of the alleged breaches of the Applicant’s section 8 and section 10(b) Charter rights.
[141] The Applicant claims his section 8 Charter rights were breached as follows:
i. On February 3, 2021, the tracking warrant authorized by JP Macdonald authorizing the tracking of the Applicant’s cell phone was executed, and the information was used to track the location of the Applicant. However, no Report to Justice was prepared or filed following execution of the warrant.
The Applicant claims that the failure to prepare and file a Report to Justice constitutes a breach of his s. 8 Charter rights.
ii. The police conducted surveillance of the Applicant both outside and inside the Applicant’s apartment building and utilized the superintendent’s office to view and review the building’s video surveillance system to locate, identify and arrest the Applicant. One officer allegedly obtained a still photograph of the Applicant from the video surveillance and showed the photograph to other officers to assist with identifying the Applicant.
The Applicant claims that the attendance by the police inside his apartment building for the purpose of conducting surveillance and viewing the video surveillance tapes and the use of those tapes to locate the Applicant including the use by an officer of a photographic still to identify the Applicant constitutes two separate breaches of his s. 8 Charter rights.
iii. On February 4, 2021, police officers arrested the Applicant and searched the Applicant incident to arrest. The items seized from the Applicant’s person were accounted for in a Report to Justice prepared by PC Haigh on February 11, 2021, which included .3 grams of a white powder substance believed to be methamphetamine. The author of the Report to Justice, PC Haigh, had not “obtained an e-signature” and as such PC Haigh had PC Beukeboom apply his e- signature on the Report for submission.
The Applicant claims that PC Haigh’s failure to personally sign the Report to Justice constitutes a breach of his s. 8 Charter rights.
iv. On February 4, 2021, prior to obtaining the executed search warrant, the police attended and entered the Applicant’s apartment claiming exigent circumstances to “clear” the apartment pending receipt of the search warrant. Following the “clear”, the police waited inside the apartment with the Applicant’s mother for approximately three hours to “hold” the apartment pending receipt of the search warrant.
The Applicant claims that exigent circumstances did not exist and the (i) “clear”; and the (ii) “hold”; constitute warrantless “pre-searches” in breach of his s. 8 Charter rights.
[142] The Applicant claims that the police did not inform him of his right to counsel without delay, or in one case at all; and did not implement his right to counsel without delay in breach of his s. 10(b) Charter rights.
[143] More particularly the Applicant alleges the police breached his s. 10 (b) Charter rights as follows:
(i) On February 4, 2021, upon his arrest for domestic assault and weapons charges at 7:50 pm, with the right to counsel provided at 8:07 pm, but with no attempt to implement his right to counsel until 9:47 pm resulting in informational and implementational breaches of s. 10 (b);
(ii) On February 4, 2021, upon being notified of additional charges laid for attempt to escape custody at 10:52 pm;
(iii) On February 4, 2021, upon being notified at 11:02 pm of the additional charge laid for possession of a Schedule 1 substance for the drugs found on his person with no right to counsel or caution being provided for this charge; and
(iv) On February 5, 2021, upon being notified at 4:05 pm of additional charges for possession for the purpose of trafficking with no right to counsel or implementation of the right to counsel being provided.
[144] The Applicant submits that due to the cumulative breaches of his section 8 and section 10 (b) Charter rights that the proceeding should be stayed. Alternatively, the Applicant submits that due to the specific breaches of his section 8 and section 10(b) Charter rights the evidence seized, including the weapons, ammunition, and drugs, should be excluded from his trial.
Position of the Crown
[145] The Crown submits that none of the Applicant’s Charter rights were breached, and if any rights were breached, such breaches were minor. In the circumstances the Crown argues that the Applicant’s Charter application should be dismissed, and the trial continue to be determined on its merits.
THE LAW AND ANALYSIS
Alleged s. 8 Breach for Failure to File a Report to Justice for the Tracking Warrant
[146] On February 3, 2021, the tracking warrant authorized by JP Macdonald authorizing the tracking of the Applicant’s cell phone was executed, and the information was used to track the location of the Applicant. However, no Report to Justice was prepared or filed following execution of the warrant.
[147] The Applicant claims that the failure to prepare and file a Report to Justice constitutes a breach of his s. 8 Charter rights.
[148] I disagree.
The Legal Principles
[149] Section 489.1(1) of the Criminal Code reads:
489.1(1) Subject to this or any other Act of Parliament, where a peace officer has seized anything under a warrant issued under this Act or under section 487.11 or 489 or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer as soon as is practicable,
(a) Where the peace officer is satisfied,
(i) That there is no dispute as to who is lawfully entitled to possession of the thing seized, and
(ii) That the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial, or other proceeding,
Return the thing seized, on being issued a receipt therefor, to the person lawfully entitled to its possession and report to the justice who issued the warrant or if no warrant was issued, a justice having jurisdiction in respect of the matter, that he has done so; or
(b) Where the peace officer is not satisfied as described in subparagraphs (a)(i) and (ii),
(i) Bring the thing seized before the justice referred to in paragraph (a), or
(ii) Report to the justice that he has seized the thing and is detaining it or causing it to be detained.
To be dealt with by the justice in accordance with subsection 490(1).
[150] Section 489 applies to both warrant and warrantless seizures. The section provides a comprehensive supervisory scheme set out at s. 490 of the Code, which requires the justice who receives the report to return the property unless the justice is satisfied that detention is required for investigation or a court hearing. The justice may extend the detention but only up to a year, after which an order from a judge of the Superior Court of Justice is required.
[151] The courts have recognized that the procedure outlined in s. 489 and s. 490 fulfils an important function of judicial oversight of property seized and held by the police: R. v. Robinson, supra, at para. 11; R. v. Canary, 2018 ONCA 304 at para. 45; R. v. Garcia-Machado, 2015 ONCA 569; R. v. Backhouse (2005) 2005 CanLII 4937 (ON CA), 194 C.C.C. (3d) 1 (Ont. C.A.) at para. 112.
[152] If s. 489 applies, a report to justice must be filed “as soon as is practicable” which necessitates a contextual and fact specific inquiry: R. v. Robinson, supra, at para. 12 citing R. v. Canary, supra, at para. 47, citing R. v. Kift, 2016 ONCA 374 at para. 10.
[153] The term “as soon as is practicable” is flexible and fact specific. It has been interpreted to mean 7 days (R. v. Neil, 2018 ONSC 5323); 14 days (Robinson, supra); 28 days (United States v. Viscomi, 2016 ONSC 5423); to a period as lengthy as three months (Garcia-Machado, supra).
[154] If s. 489 applies, failure to file a report to justice “as soon as practicable” following property seizure affects an accused’s s. 8 Charter rights as the privacy rights attached to the property seized are not extinguished following detention: R. v. Colarusso, 1994 CanLII 134 (SCC), [1994] 1 S.C.R. 20.
[155] Where property owned by an accused is seized and detained in breach of s. 489.1(1), the continued detention of that property is not authorized by law: Backhouse, 2005 CanLII 4937 (ON CA), [2005] 194 C.C.C. (3d) 1 (C.A.), at para. 115.
[156] Section 489.1(1) applies where the beneficial ownership of seized property is disputed. However, s. 489.1(1) does not apply where no “seizure” of property has occurred.
[157] As per R. v. Trought, 2019 ONSC 2748, where there is no continuing proprietary claim or expectation of return of the property, there is no seizure nor any requirement that a return to justice be filed.
Analysis and Findings
[158] In the present case, two questions arise: (i) did the Applicant have a continuing proprietary claim or expectation of return of the data; and (ii) did receipt of the ping data by the police constituted a “seizure” of the data.
[159] The first question is whether the Applicant had a continuing proprietary claim or expectation of return of the data.
[160] The pings were digitally collected by Telus from equipment owned and/or operated by Telus. Following collection of the data, Telus provided the information (coordinates) by telephone (orally) to the police. The police transcribed the information received and then “Googled” the coordinates to obtain a radius or range within which the Applicant’s phone was believed to be located at the time of the pings.
[161] The ping data and corresponding coordinates never provided a targeted location but instead provided a location within a radius of several kilometers.
[162] The ping data was not obtained from the Applicant’s cellphone, or any other personal device owned by the Applicant. Instead, the data was obtained from cell towers and equipment owned and/or controlled by Telus and then shared with the police.
[163] Neither the police nor the Applicant could access the ping data without Telus’ consent and cooperation. The data was created and obtained from Telus’ equipment. Telus was the sole party who possessed the ping data.
[164] Even if the Applicant has a right to request ping data associated to his cell phone, a right to request does not equate to a proprietary claim. As Telus created the data, possessed, and controlled the data, I am of the view that Telus is the sole party with a proprietary claim to the data.
[165] As for the question of whether the Applicant had any expectation of return of the data - the Applicant never possessed the data. The data was only shared with the police. The data remained in Telus’ control thus eliminating any requirement it be returned.
[166] For these reasons I find that the Applicant had no proprietary claim or expectation of return of the ping data.
[167] The next question is whether the ping data was “seized” by the police.
[168] Justice Ricchetti in Trought at para. 278 held that where there is no proprietary claim or expectation of return of the data - there is no seizure. Accepting Trought as a correct statement of the law, I find that there was no seizure of the ping data and as such s. 489.1(1) does not apply.
[169] However, if I am mistaken and the Applicant had a continuing proprietary claim or expectation of return of the data, I find that the manner that the ping data was obtained did not constitute a seizure of that data in any event.
[170] Telus orally shared the ping data with the police by telephone. Telus did not divest themselves of the data. The data remained in Telus’ care and control, both prior to and following the sharing of the information with the police. As a result, the police were never the sole possessors of the ping data.
[171] As the ping data was “shared” and not exclusively possessed by the police, I find that there was no “seizure” of the data.
[172] For the foregoing reasons, I find that s. 489.1(1) is not applicable to the tracking warrant, a return to justice was not required, and there was no breach of the Applicant’s s. 8 Charter rights for failure to file a return to justice.
Alleged s. 8 Breach Due to PC Haigh’s Report to Justice being signed PC Beukeboom
[173] On February 4, 2021, police officers arrested the Applicant and searched the Applicant incident to arrest. The items seized from the Applicant’s person were accounted for in a Report to Justice prepared by PC Haigh on February 11, 2021.
[174] After completing the Report to Justice, PC Haigh learned that an e-signature was required to digitally sign and file the Report to Justice. PC Haigh testified that she was a new recruit who had not yet been issued her e-signature. For this reason, PC Haigh requested another officer (PC Beukeboom) to sign the form on her behalf. PC Haigh noted these facts on the Report to Justice as follows: “in conclusion, PC Beukeboom number 3094 authorized his signature due to myself, PC Haigh, not having a PKI signature as I am a new recruit”.
[175] The Applicant claims that PC Haigh’s failure to sign the Report to Justice constitutes a breach of his s. 8 Charter rights.
[176] I disagree.
The Legal Principles
[177] Section 489.1(3) of the Criminal Code provides that a Report to Justice shall be in the form set out as Form 5.2 Part XXVIII, varied to suit the case.
Analysis and Findings
[178] Clearly the legislation contemplates flexibility in the completion of the report.
[179] In the present case, PC Haigh completed the form as directed but had no e-signature to enable the form could be completed and filed. In the circumstances, PC Haigh obtained the assistance of PC Beukeboom to sign the form and clearly explained the reason for the substituted signature on the report.
[180] PC Haigh varied the form to suit the case as mandated by s. 489.1(3). There is no breach of the Applicant’s s. 8 Charter rights in this regard.
Alleged s. 8 Breach for Entry to Review Video Surveillance without a Warrant
[181] The police conducted surveillance of the Applicant both outside and inside the Applicant’s apartment building and utilized the superintendent’s office to view and review the building’s video surveillance system to locate, identify and arrest the Applicant. One officer allegedly obtained a still photograph of the Applicant from the video surveillance and showed the photograph to other officers to assist with identifying the Applicant.
[182] The Applicant claims that the attendance by the police inside his apartment building for the purpose of viewing the video surveillance tapes and the use of those tapes to locate the Applicant including the use by an officer of a photographic still to identify the Applicant constituted two separate breaches of his s. 8 Charter rights.
[183] I disagree.
The Legal Principles
[184] Notwithstanding the existence of a resident’s expectation of privacy in the common areas of a condominium or apartment building, police entries into those areas are lawfully authorized on the consent of property management: R. v. Yu, 2019 ONCA 942.
[185] With respect to the question of whether the Applicant had any expectation of privacy in the video surveillance, the court has held that there is no reasonable expectation of privacy of lobby video surveillance footage: R. v. Truong, 2021 ABQB 34 at paras. 53 – 57.
[186] Further, as discussed by Justice Code in R. v. Khiar, 2021 ONSC 4677, while tenants may have a reasonable expectation of privacy in common areas, the expectation of privacy is low in areas that are access by other residents and guests.
[187] Where a building superintendent authorizes police to attend in the common areas of a building in the proper exercise of his authority, and surveillance footage taken of common areas in the apartment building, there is no breach of s. 8 Charter rights.
[188] This is especially true in circumstances such as the present where there were signs and notices that the area was subject to surveillance and evidence by the superintendent Mr. McArthur that he “always” allowed the police access to view the surveillance upon request.
Analysis and Findings
[189] In the present case, the cameras did not capture the apartment units, stairwells, or hallways (in full) and only offered views of those areas that were able to be occupied by any resident and any guest who may enter the property.
[190] Similar to Khiar, the nature of the recordings viewed provided no insight into any activity inside the apartment as the cameras only captured a short area of the hallway leading to the elevator. The surveillance cameras were obvious and visible and there were signs warning that surveillance cameras were in use. There was no privacy policy for the building and the residents were aware that there were security cameras in the building.
[191] There was no violation of the Applicant’s s. 8 rights as a result of the police entering the building and viewing the security video footage as the superintendent validly consented to allow the police entry and access to the video footage.
[192] Superintendent McArthur testified that he had authority to allow police to view the video footage and confirmed that he was aware he could have insisted on a warrant. There is no suggestion of police coercion. Mr. McArthur testified that he “always” cooperates with the police and “always” allows the police to view the security footage on request.
[193] The police did not mislead Mr. McArthur and he was aware of the broad purpose of the request: R. v. Yu, supra, paras. 97 – 101; Attorney General Nova Scotia v. McIntyre, 1982 CanLII 14 (SCC); and R. v. Stinchcombe, 1991 CanLII 45 (SCC).
[194] I find that the case at hand is entirely distinguishable as the case relied upon by the Applicant of R. v. Nguyen, 2022 ONSC 1102, where the police did not have reasonable and probable grounds to arrest the accused and were not looking to arrest the accused. In Nguyen the police were in the early stages of investigation and had an entirely different focus and proposed use of the video surveillance. In the present case, the police had reasonable and probable grounds to arrest the accused and were merely trying to locate him to effect an arrest “when it was safe to do so”.
[195] As for the alleged use of a photo of the Applicant taken from the security video footage, allegedly used to identify the Applicant, no authority was provided where in similar circumstances such information was considered a Charter engaging search or breach.
[196] Any photo captured could only have been taken in the common areas of the building. There is no evidence that the photo was obtained by compulsion, trickery, or without consent.
[197] In Trought, supra, at para. 266, a video of an accused was obtained from a taxi driver and used to identify the accused. The judge found that the video was obtained in a public place and there was no evidence that the video was taken by compulsion, trickery, or any other method. Citing the Supreme Court in R. v. Tessling, 2004 SCC 67, the judge noted that not every intrusion by the police into personal information gives rise to Charter rights. Having reviewed the evidence and determined that the video did not result in any core biographical information being obtained and was filmed in a public place, the judge held that the accused’s rights were not engaged when the police obtained a copy of the video from the taxi.
[198] Similar to Trought, any image of the Applicant would have been captured by the security cameras in the common areas of the building which have a low expectation of privacy. As the building has signs posted inside and outside alerting residents of the use of security cameras, the Applicant would have known that his likeness was captured when he appeared in front of the security cameras. Further, as the Applicant had been previously photographed by the police – he would also have been aware that the police already had his photograph. It is my view that the Applicant had a very low privacy interest in any images captured by the security cameras.
[199] In the circumstances, I do not find that the Applicant’s Charter rights were engaged when (or if) the police obtained a photograph of the Applicant from the video surveillance.
[200] For the above noted reasons I find that there was no breach of the Applicant’s s. 8 Charter rights when the police attended the Applicant’s apartment building to conduct surveillance and review the security video footage nor was there a breach when (or if) the police obtained a still photograph of the Applicant from the security video footage.
Alleged s. 8 Breach for Executing a “Clear and Hold” Pre-Search of the Unit
[201] On February 4, 2021, immediately following the accused’s arrest and prior to obtaining a search warrant, the police entered the Applicant’s apartment claiming exigent circumstances to “clear” the apartment pending receipt of the search warrant. Following the “clear”, the police waited with the Applicant’s mother inside the apartment for approximately three hours to “hold” the apartment pending receipt of the search warrant.
[202] The Applicant claims that the entries into the apartment to both “clear” and “hold” the apartment prior to receipt of the search warrant constituted unauthorized “pre-searches” in breach of his s. 8 Charter rights.
[203] I disagree.
The Legal Principles
[204] For police to conduct a warrantless search under exigent circumstances, the police must have reasonable grounds to obtain a warrant and reasonable grounds that there is imminent danger that evidence will be destroyed or lost if the police do not seize or secure the place where the evidence is located: R. v. Kelsy, 2011 ONCA 605, at paras. 25 – 31; R. v. Seguin, 2015 ONSC 1908 at para. 32; R. v. Phoummasak, 2016 ONCA 46 at para. 12; R. v. Merritt, 2017 ONSC 80 at para. 100.
[205] Courts will often consider whether police had other good options other than performing the warrantless search, and whether they acted in good faith: R. v. Lucas, 2014 ONCA 561 at para. 247; R. v. Merritt, 2017 ONSC 80 at para. 125.
Analysis and Findings
[206] On February 4, 2021, at the time of the Applicant’s arrest, the police were aware that the Applicant’s mother was inside the apartment, and his brother lived in a neighbouring unit.
[207] DC Byers, DC Hart, DC Parro, DC Elliott, DC Laloo, and DC Chambers all testified that upon arrest the Applicant created a scene and engaged in attention seeking behavior which they believed was designed to alert his mother or brother of his arrest with the intent that any evidence in the Applicant’s apartment would be lost or destroyed.
[208] DC Chambers testified that fact that the Applicant lived with his mother and that his brother lived in a neighbouring unit, and the fact that Applicant was believed to possess a handgun, extended magazines, and ammunition which were not found on his person, caused great concern as to the safety and security of the public and police and the preservation of the evidence in the event following arrest.
[209] Based on these facts and the shared belief that the Applicant was trying to alert his mother and/or his brother and claiming exigent circumstances regarding the safety and security of the public and police and the preservation of evidence, the police entered the Applicant’s apartment building with the intent to “clear and hold” the Applicant’s apartment pending issuance of the search warrant.
[210] DC Laloo testified that upon exiting the elevator and walking towards unit 314 he observed the Applicant’s brother exit his apartment (311) and walk towards apartment 314. DC Laloo questioned the Applicant’s brother where he was going, and he responded that he was going to “see him mom” (i.e., to the Applicant’s apartment 314). DC Laloo cautioned the Applicant’s brother that he was not allowed in the apartment as it was going to be “frozen”, and no one was allowed in or out of that residence.
[211] The police knocked on the Applicant’s door and after a short period, the Applicant’s mother opened the door. Following a brief discussion, the police conducted a “clear” of the apartment searching only for individuals who may be inside. The “clear” took less than one minute following which the police exited the apartment.
[212] After exiting, the Applicant’s mother was provided with the option to wait elsewhere but requested to wait inside her apartment. The police accommodated her request but waited with her to monitor her movements.
[213] DC Laloo and DC Patterson both testified that no search of any kind was executed while the police waited inside the apartment with Mrs. Bollers pending receipt of the search warrant.
[214] In the present case, the police had reasonable grounds to obtain a warrant to search evidenced by the fact that the police had already obtained two warrants and were in the process of obtaining a third.
[215] As for the ground that there must be imminent danger that evidence will be destroyed or lost if the police do not seize or secure the place where the evidence is located, all officers who were present and testified stated that that the Applicant’s behavior upon arrest was “attention seeking behavior” intended to raise an alarm to the occupants inside the building.
[216] Based on the police knowledge that the Applicant’s mother was inside the unit and his brother lived next door and based on the Applicant’s behavior at the time of his arrest, it is my view that the police had reasonable grounds to believe there was imminent danger that evidence would be destroyed or lost if the police did not seize or secure the Applicant’s residence.
[217] Further, in the event there was any question as to whether reasonable grounds existed, the grounds were made out when the police intercepted the Applicant’s brother in the hallway attempting to access the apartment. Regardless of any stated purpose for the entry by the Applicant’s brother, exigent circumstances existed, and the police were required to clear and freeze the apartment pending receipt of the search warrant both for public and officer safety and for the preservation of evidence.
[218] Based on the evidence, exigent circumstances existed for the police to conduct a warrantless search to secure the premises. There was no s. 8 Charter breach in this regard.
[219] As for the “hold” by the police of the premises pending receipt of the search warrant, the police offered Mrs. Bollers options to wait in other locations and she declined. The police allowed Mrs. Bollers to remain in her premises in the living room while they waited for the search warrant. It was necessary to monitor her movements based on the exigent circumstances described above.
[220] DC Laloo testified that while inside the apartment, the OMU officers did not go anywhere other than the living room and the hallway. No search was conducted of the unit and no property was seized. The officers remained to “keep observations of Mrs. Bollers at this time as there is still an outstanding firearm potentially inside that unit”.
[221] At approximately 9:10 pm the unit was turned over to 18-Division unit who held the apartment until the search warrant was obtained.
[222] PC Patterson from the 18-Division unit, testified that himself, PC Sheppard, and PC Hutcheson assumed possession of the unit from the OMU officers waiting receipt of the search warrant. PC Patterson testified that they offered Mrs. Bollers the option to leave, and she chose to stay. PC Patterson further testified that all officers remained in the living room with Mrs. Bollers while she watched television, no one went anywhere else in the apartment, and no search was made of the apartment by him or his team from 18-Division.
[223] I found DC Laloo and PC Patterson to be credible witnesses who provided reliable testimony. Their evidence was not shaken or altered on cross-examination.
[224] Having carefully considered the evidence proffered, I find that there is no evidence that any search of the apartment was undertaken by any officer during the “hold” period. There was no breach of the Applicant’s s. 8 Charter rights in this regard.
Alleged s. 10(b) Breach for Delay in Advising and Implementing the Rights to Counsel
[225] The Applicant alleges the police breached his s. 10 (b) Charter rights.
The Legal Principles
[226] Section 10(b) of the Charter guarantees that upon arrest or detention every person shall have the right to retain and instruct counsel without delay. The rationale for the right was discussed by the Supreme Court of Canada in R. v. Suberu, 2009 SCC 33, at para. 42:
The purpose of s. 10(b) is to ensure that individuals know of their right to counsel and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guards against the risk of involuntary self-incrimination.
[227] In R. v. Suberu the Court held that the “right to counsel” duties that are imposed upon the police by s. 10(b) of the Charter are triggered immediately upon an arrest or detention.
[228] In R. v. Wu, ONSC 217 1003, at para. 76, Justice DiLuca explains that the right to counsel is broken down into informational and implementational components. The informational component requires the police advise the detainee of his or her right to retain and instruct counsel without delay and that the detainee be advised of the existence of Legal Aid and duty counsel. The implementational component requires that the police provide a detainee with a reasonable opportunity to exercise the right to counsel and that the police refrain form eliciting evidence until he or she has had a reasonable opportunity to exercise the right to counsel: see also R. v. Bartle, (1994), 1994 CanLII 64 (SCC), 92 C.C.C. (3d) 289 AT 301 (S.C.C.).
[229] In Suberu the Court held that the informational and implementational aspects of the right to counsel are to be satisfied immediately. The immediacy of the informational and implementational obligations are subject only to concerns for officer or public safety, or reasonable limits that are prescribed by law and justified under s. 1 of the Charter. See also: R. v. Thompson, 2020 ONCA 264, [2020] OJ No 1757 at para. 67. R. v. Wong, 2015 ONCA 657, 127 O.R. (3d) 321, at para. 50.
[230] Cases where the duties imposed by s. 10(b) of the Charter have been delayed or suspended involve an assessment based on fact specific determination.
[231] Justice DiLuca in Wu, supra, at para. 78, details the general guiding principles that provide a framework for such an assessment as follows:
a. The suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or where there are concerns for public safety. Effectively, the right to counsel should not be suspended absent exigent circumstances: see R. v. Bartle, at p. 19; R. v. Suberu, at para. 42; and R. v. Learning, 2010 ONSC 3816 at para. 75.
b. There is no closed list of scenarios where a delay or suspension of the right to counsel is justified. However, the following general categories emerge from the case law:
i. Cases where there are safety concerns for the police, see R. v. Grant, 2015 ONSC 1646 at para. 107, R. v. J.J., 2010 ONSC 735 at paras. 276-8, and R. v. Learning, at para. 75;
ii. Cases where there are safety concerns for the public, see R. v. Thind, 2011 ONSC 2054 at paras. 113-15 and 122;
iii. Cases where there are safety concerns for the accused, see R. v. Strehl, 2006 CanLII 39572 (ONSC) at para. 4;
iv. Cases where there are medical concerns, see R. v. Willier, 2010 SCC 37 at para. 8 and R. v. Taylor, 2014 SCC 50 at para. 31;
v. Cases where there is a risk of destruction of evidence and/or an impact on an ongoing investigation, see R. v. Rover, 2016 ONSC 4795 at para. 66 and 70, R. v. Kiloh, 2003 BCSC 209 at para. 15 and 38, and R. v. Salmon, 2012 ONSC 1553 at para. 92; and
vi. Cases where practical considerations such as lack of privacy, the need for an interpreter or an arrest at a location that has no telephone access justify some period of delay, see R. v. J. (K.W.), 2012 NWTCA 3 at para. 29 – 30, and R. v. Khairi, 2012 ONSC 5549.
c. The right to counsel cannot be suspended simply on the basis that a search warrant is pending, see R. v. Soto, 2010 ONSC 1734 at para. 69, and R. v. Liew and Yu, 2012 ONSC 1826 at para. 70.
d. A general or bald assertion of “officer safety” or “destruction of evidence” concerns will not justify a suspension of the right to counsel, see R. v. Patterson, 2006 BCCA 24 at para. 41-42, and R. v. Proulx, 2016 ONCJ 352 at para. 47.
e. Police officers considering whether circumstances justify suspending the right to counsel must conduct a case-by-case assessment aided by their training and experience. A policy or practice routinely or categorically permitting the suspension of the right to counsel in certain types of investigations is inappropriate.
f. The suspension of the right must only be for so long as is reasonably necessary, see R. v. Mazza, 2016 ONSC 5581, at para. 83. In this regard, the police should be vigilant to ensure that once the decision has been made to suspend the right to counsel, steps are taken to review the matter on a continual basis. The suspension is not meant to be permanent or convenient. The police must still comply with the implementational component as soon as circumstances reasonably permit. A decision to suspend rights that is initially justifiable may no longer be justified if the police fail to take adequate steps to ensure that the suspension is as limited as is required in the circumstances.
g. The longer the delay, the greater the need for justification. The right to counsel must be given “without delay”. The case law addressing the length of time the right to counsel has been suspended has examined periods of time as short as several minutes up to an extreme example of a suspension of the right to counsel for a period of approximately 26 hours; see Blakely v. Parker, 2007 CanLII 33123 (ONSCDC). In the latter case, the police were executing a warrant to seize multiple firearms from a known violent family and the target of the search was known to be part of a criminal organization that was willing to confront and shoot police.
h. The suspension of the right to counsel must be communicated to the detainee, see R. v. Rover, 2016, ONSC 4785 at para. 70.
[232] The Supreme Court of Canada in R. v. Willier, 2010 SCC 37, stated that s. 10(b) entitles a detainee a reasonable opportunity to contact counsel of choice.
[233] If 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.
[234] 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.
[235] What amounts to a reasonable amount of time depends on the circumstances and may include factors such as the seriousness of the charge and the urgency of the investigation.
[236] As Justice Lamer emphasized in R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3, diligence must also accompany a detainee’s exercise of the right to counsel of choice.
Analysis and Findings
[237] There are two allegations relating to the initial arrest.
i. There is an allegation that the informational component of the right to counsel without delay was breached between the time the Applicant was arrested at 7:50 pm and the time he was read the right to counsel at 8:07 pm; and
ii. There is an allegation that the implementational component of the right to counsel without delay was breached due to the delay between the time the Applicant was read his right to counsel at 8:07 pm and the time the police began attempting to implement the right to counsel at 9:47 pm.
Informational Delay
[238] Dealing first with allegation that there was an informational delay, the evidence on the voir dire established that when the Applicant was taken into custody:
i. He resisted arrest by striking out at the officers, attempted to grab DC Hart’s radio, and laid on the ground trying to keep with his arms under his body;
ii. He created a scene and disturbance by falling to the ground and “screaming at the top of his lungs”, calling out for his brother, calling to his mother, and by yelling loudly towards his apartment the occupant on the apartment’s balcony; and
iii. He claimed to suffer physical injury, repeatedly stated that he had trouble breathing, had severe pain in his legs, had severe pain in his chest and body, and required immediate medical attention.
[239] As a result of the Applicant’s erratic and attention seeking behaviour – there was a delay between the time of arrest and the reading of the right to counsel. The delay, in my view, was caused completely by the actions of the Applicant.
[240] Due to the Applicant’s resistance and attention seeking behavior they were required to secure the Applicant and remove him from the front of the apartment building. Additionally, the Applicant claimed to be in great pain and in need of urgent medical attention. For this reason, the police were required to have the Applicant medically assessed. In my view the police are to be commended for having the foresight to have medical personnel on scene to implement the assessment in a timely manner.
[241] Once medically assessed, the Applicant was transferred to uniformed officers for transport to the police station. As soon as the Applicant was secured in the rear of the police cruiser, he was read his rights to counsel.
[242] All delay occasioned between the Applicant’s arrest and the reading of the right to counsel was due to the behavior of the Applicant and justified on the grounds of safety concerns for public, police, and the Applicant. Additionally, due to the Applicant’s claims of injury, any delay occasioned due to health concerns was also justified.
[243] In the present case, all delay occasioned between the accused’s arrest at 7:50 pm and the reading of his right to counsel at 8:07 pm was justified and there is no s. 10 (b) breach.
Implementational Delay
[244] Dealing next with the implementational delay, the evidence established that following the reading of the right to counsel at 8:07 pm, the Applicant’s lawyer of choice was not contacted until 9:47 pm. As noted, the Applicant claims that the delay in implementing his right to counsel constitutes a breach of s. 10(b).
[245] I disagree.
Implementational Delay While in Police Cruiser
[246] The evidence established that as soon as the Applicant was read his right to counsel - he was asked if he had a lawyer and advised that had a lawyer but could not recall his lawyer’s name.
[247] At the time the Applicant was in the rear seat of the police cruiser and the police intended to transport the Applicant to the station thus affording him the opportunity to recall his lawyer’s name and implement his right to counsel without delay.
[248] Having considered the evidence of the events that preceded the Applicant entering the cruiser, I find that the immediacy of the obligation to implement the right to counsel was subject to both practical and public and officer safety concerns best addressed at the station.
[249] I find that due to practical considerations and safety and security concerns, there was no obligation to implement the right to counsel while the Applicant was in the back seat of the police cruiser and no breach of s. 10 (b) in this regard.
Implementational Delay at Hospital
[250] While transporting the Applicant to the police station the Applicant claimed to be in distress suffering from breathing and heart issues. Due to the severity of the symptoms claimed, PC Haigh and PC Hristov contacted their Staff Sargent who provided permission to take the Applicant directly to the hospital for an urgent medical assessment.
[251] At approximately 9:06 pm, while at the hospital, the Applicant advised PC Haigh of his lawyer’s name.
[252] The Applicant alleges that the police should have taken steps to implement the right to counsel while he was at the hospital and failure to do so constituted a breach of s. 10 (b).
[253] I disagree.
[254] Upon being advised of the lawyer’s name, “Hussain Aly”, PC Hristov telephoned PC Ledwidge (who was at the police station and recorded the time in police notebook) and advised that the Applicant’s lawyer was “Hussain Aly”.
[255] PC Ledwidge conducted a Google search for Mr. Aly and located a phone number.
[256] PC Ledwidge called Mr. Aly and spoke to Mr. Aly’s associate who then provided PC Ledwidge with Mr. Aly’s cell number.
[257] PC Ledwidge then called Mr. Aly’s cell number but was not able to reach Mr. Aly and instead left a voicemail message.
[258] PC Ledwidge located an email address for Mr. Aly and sent an email to Mr. Aly advising that the Applicant was in custody and looking to speak to him.
[259] All efforts to contact Mr. Aly as noted above were made upon being advised of Mr. Aly’s name, prior to the Applicant’s arrival at the police station, and during the period that the Applicant was awaiting treatment and/or allegedly attempting to escape custody while at Lakeridge Health Oshawa Hospital.
[260] I accept the testimony of PC Haigh and PC Hristov that their primary concern was for the health of the Applicant followed by safety and security concerns. The legitimacy of the officers’ safety and security concerns were made out on the facts and evidenced by the Applicant’s alleged attempt to escape custody.
[261] In the circumstances, I find that the immediacy of the obligation to implement the right to counsel was properly subject to pressing health concerns on behalf of the Applicant and secondarily properly subject to public and officer safety concerns.
[262] For these reasons there was no breach of the Applicant’s s. 10(b) rights due to the failure of PC Haigh and PC Hristov to implement the Applicant’s right to counsel while at the hospital.
[263] In any event, I also find that during the period that the Applicant was at the hospital, PC Ledwidge was taking all necessary steps to implement the Applicant’s right to contact his counsel of choice, Mr. Aly. In this regard I find that the police were actively attempting to implement the Applicant’s right to counsel during the period that he was at the hospital leading me to conclude, again, that there was no breach of the Applicant’s s. 10(b) rights while he was at the hospital.
Implementational Delay at Police Station
[264] The Applicant arrived at the police station at 10:08 pm and the booking process was completed at 10:32 pm.
[265] By the time that the Applicant arrived at the police station, PC Ledwidge had already conducted a Google search to locate and identify Mr. Aly, called Mr. Aly’s office and had spoken to Mr. Aly’s associate, called Mr. Aly’s direct cell phone and left a message to return his call, and sent Mr. Aly an email advising him that the Applicant was in custody and requesting that he call the station.
[266] There is no evidence that the police attempted to interview or speak to the Applicant about his charges before the court at any time prior to implementation of his right to counsel.
[267] PC Ledwidge testified that Mr. Aly returned his telephone calls and email messages at 11:20 pm at which time the Applicant was provided with an opportunity to implement his right to counsel.
[268] The delay that was experienced cannot be said to be the fault of the police who took every step to contact the Applicant’s counsel of choice and accommodate the Applicant.
[269] The delay between the initial arrest, the initial rights to counsel and caution, and implementation of the rights to counsel did not result in a breach of s. 10 (b).
Additional Charges Laid Following Arrest
The Legal Principles
[270] As stated by the Court of Appeal in R. v. Roberts, at para. 78, all that is required is “information that is sufficiently clear and simple to enable [the accused] to understand the reason for their detention and the extent of their jeopardy.”
[271] In R. v. Evans, the Supreme Court of Canada said at pp. 892-893: There is a duty on the police to advise a detainee of his or her right to counsel a second time when new circumstances arise indicating that the accused is a suspect for a different, more serious crime than the case at the time of the first warning.
[272] In R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, the Supreme Court stated at para. 51 that a detainee must be given a further opportunity to consult with counsel: “when the investigation takes a “new and more serious turn” and his or her jeopardy changes”.
Analysis and Findings Relating to Addition Charges
Failure to Inform of Additional Charges Relating to Attempt to Escape Custody
[273] At 10:06 pm, the Applicant was transported from the hospital to the police station. During the drive he alleges that he overheard PC Hristov and PC Haigh discussing the further charges that would be laid against the Applicant for his alleged attempt to escape custody.
[274] At 10:08 pm, after the Applicant was brought to the police station and during the booking process, he was advised that he would likely be charged with escape lawful custody, assault, with intent to resist arrest, and obstructing police.
[275] At 10:52 pm, PC Haigh attended the Applicant’s cell and advised him that he was being arrested on additional charges arising from the incident at the hospital relating to an alleged attempt to escape custody. PC Haigh testified that she provided the Applicant with his rights to counsel and caution immediately upon arrest for these charges.
[276] The fact that the Applicant overheard the police discussing the events that had occurred at the hospital and later advised him that he would likely be charged with the offences, does not invoke s. 10 (b) Charter rights. The Applicant was already detained on other charges and had received his right to counsel and caution in relation to those charges. The police had attempted to implement his right to counsel and had not yet determined what further charges, if any would be laid. In the circumstances of this case, given that the accused had already been detained and had been provided with his s. 10(b) rights, there was no obligation upon the police to advise him of his right to counsel in relation to the additional charges until such time as he was arrested for those charges.
[277] In the present case, PC Haigh informed the Applicant of his right to counsel immediately upon arrest and steps had already been taken to implement his right to counsel as detailed above.
[278] There was no evidence that the police attempted to question the Applicant about any of the charges nor was there any evidence that the Applicant sought to contact a lawyer other than his lawyer of choice.
[279] PC Hristov was able to contact Mr. Aly, the Applicant’s lawyer of choice at 11:20 pm and the Applicant was provided an opportunity to speak to his lawyer of choice in cells.
[280] There was no breach of s. 10 (b) as it relates to the additional charges relating to the alleged attempt to escape from custody.
Failure to Inform of Right to Counsel Relating to Charges Relating to Possession
[281] The Applicant was advised of his charges relating to possession of .3 grams of methamphetamine at 11:02 pm. However, there is no evidence that the Applicant received any rights to counsel or caution relating to this charge.
[282] The failure to provide the right to counsel relating to this charge constitutes a breach of s. 10(b).
Failure to Implement Right to Counsel Relating to Additional P4P Charges
[283] DC Adepegba attended the Applicant’s cell at 4:05 pm on February 5 and advised the Applicant of two additional charges relating to possession of drugs found at his apartment pursuant to the executed search warrant. DC Adepegba testified that he provided the Applicant with his rights to counsel and caution at that same time and then left the cell and attempted to contact the Applicant’s counsel to implement his right to counsel.
[284] At 4:15 am, DC Adepegba’s notes record that he re-attended the Applicant’s cell to advise the Applicant that his lawyer (Mr. Aly) had not returned his call.
[285] DC Adepegba testified that he had an independent recollection of the events which was supported by his notes and reports. DC Adepegba’s evidence was not shaken on cross-examination and is accepted by me.
[286] There is no evidence of delay relating to the informational or implementational components of the Applicant’s s. 10 (b) rights as it relates to additional charges for the drugs seized during the search of his apartment and no breach of the Applicant’s s. 10(b) rights in this regard.
Section 24(1): The Legal Principles
[287] The requirements for granting a stay for abuse of process are outlined by the Supreme Court of Canada in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 at para. 32, as follows:
There must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that will be manifested, perpetuated, or aggravated through the conduct of the trial, or by its outcome;
There must be no alternative remedy capable of redressing the prejudice; and
Where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the Court must balance the interests in favour of granting a stay against the interests that society has in having a final decision on the merits.
[288] As further stated by the Supreme Court of Canada in R. v. O’Connor, [1995] 1 S.C.R. 411, at para. 39, a stay of proceedings is only to be granted in the clearest of cases where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.
Section 24(1): Analysis and Findings
[289] The Applicant submits that the violations of the Applicant’s rights in this matter are so egregious that a stay of proceedings is the most appropriate remedy.
[290] The Applicant argues that the conduct of the police officers makes the Applicant’s matter “one of the clearest cases in which a stay of proceedings is not only available but warranted”. The Applicant claims that the actions of the police officers “jeopardizes the perception of trial fairness and brought the integrity of the law enforcement into disrepute”.
[291] I disagree.
[292] Having reviewed the entirety of the police conduct in this matter, I found only one Charter breach, and that breach was both minor and unintentional.
[293] The facts of this case do not warrant a stay nor further consideration of s. s. 24(1).
[294] The request for a stay of proceedings is dismissed.
Section 24(2) Analysis: The Legal Principles
[295] The Applicant seeks to exclude all evidence seized through the execution of the search warrants, including the tracking warrant, as the Applicant alleges that such evidence was obtained in a manner that offended and infringed the Applicant’s Charter rights.
[296] As per the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, when deciding whether to admit evidence obtained by a Charter breach, the court must consider three factors:
The seriousness of the Charter-breaching state conduct;
The impact of the breach on the Charter-protected interests of the accused; and
Society’s interests in the adjudication of the case on its merit.
Section 24(2): Analysis and Findings
The Seriousness of the Conduct
[297] In the present case, the sole Charter breach found was the failure by PC Haigh to re-inform the Applicant of the right to counsel after advising him of an additional charge.
[298] PC Haigh testified that she was aware of the necessity to advise the Applicant of the right to counsel as she had earlier advised the Applicant of additional charges and provided him with the right to counsel at that time.
[299] However, PC Haigh testified that she could not swear that she re-informed the Applicant of the right as she had not recorded this fact in her notebook.
[300] PC Haigh did not attempt to explain or excuse the failure to re-inform and in my view her testimony evidenced respect for the justice system and the rule of law.
[301] Although the Applicant should have been re-informed of the right to counsel, the further charge was less serious than the charges already laid. I find the seriousness of the state conduct to be minor and inadvertent and favours admission.
The Impact on the Applicant
[302] The failure to re-inform the Applicant of his right to counsel for the additional charge had little to no impact on the Applicant.
[303] At the time the Applicant was advised of the additional charge, his lawyer had not yet contacted him. The Applicant was informed of the additional charge and his lawyer contacted him shortly thereafter. This factor favours admission.
Society’s Interest in Adjudication of the Case on Its Merits
[304] The subject of the charge was possession of .3 grams of methamphetamine. The drugs represent real reliable evidence. This factor favours admission.
Balancing the Factors
[305] The s. 24(2) analysis requires a balancing of all these factors. In the present case, I find that all factors favour admission.
[306] There shall be no exclusion of evidence under s. 24(2).
DISPOSITION
[307] The application to stay the proceedings and to exclude the evidence is dismissed.
Justice Susan J. Woodley
Released: January 20, 2023
COURT FILE NO.: 15627/21
DATE: 20230120
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
Michael Bollers
RULING
Madam Justice S.J. Woodley
Released: January 20, 2023