Court File and Parties
COURT FILE NO.: CR-22-30000517 DATE: 20230912 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: His Majesty the King – and – YASMIN MUZAFARY Applicant
Counsel: Brad Ververs, for the Crown, Respondent Emily Dixon, for the Applicant
HEARD at Toronto: August 30, 31 and September 1, 2023
Ruling on Charter Application
Low J.
1The applicant is charged with attempted murder, aggravated assault, dangerous driving, dangerous driving causing bodily harm, failure to remain at an accident causing bodily harm and two counts of assault with a weapon.
2The charges arise from an incident on December 30, 2020. Following a drug transaction, a female person and her male companion were involved in a physical altercation with the two complainants, also a male and a female. The male and female persons left the complainants and departed in a car. Video surveillance footage shows the car returning to the scene. A male is seen to exit the car and attack the male victim with a baseball bat. The car is seen mounting the sidewalk and hitting and running over the female complainant. The male is seen to reenter the car on the passenger side and the car is seen departing the scene. Identity of the driver of the car will be in issue at trial. Clothing of the female alleged to be involved in the incident was captured on video footage.
3Investigation by police led to the issuance of a Feeney warrant for the arrest of the applicant, a Criminal Code residential search warrant and a Controlled Drugs and Substances Act residential search warrant for the applicant’s apartment. The warrants were executed on February 18, 2021. The applicant was arrested and police seized articles of clothing and personal accessories relevant to identity of the applicant as the female person involved in the incident. Also seized pursuant to the Criminal Code warrant was the applicant’s cell phone.
4The applicant seeks:
a. An order declaring that the Applicant’s rights under ss. 7, 8 and 10(b) of the Charter were breached;
b. An order setting aside the CDSA warrant;
c. An order staying the proceedings; in the alternative:
d. An order for exclusion of the real evidence seized in the execution of the search of the residence; in the further alternative:
e. An order for the reduction in sentence.
5The grounds advanced are set out in the notice of application and I will not reproduce them here.
6In summary, I find that there was a breach of the applicant’s s. 8 rights when an officer looked into the data in the applicant’s cell phone to ascertain the identity of a non-cooperating male found in the applicant’s apartment at the time of the search warrant execution. The officer did so without prior legal authorization or consent of the applicant. It was a warrantless search of the cell phone and the crown has not sought to show that it was reasonable.
7I find that there was a breach of the informational component of the applicant’s s. 10(b) right to be informed without delay of her rights to counsel. I find that the breach was technical and minor and that it did not result in any impact on the applicant. I do not find that there was a breach of the implementational aspect of the applicant’s s. 10(b) rights.
8I find that the manner of search under the two search warrants has not been shown to have been unreasonable. I find that the manner of search, assuming that only the Criminal Code search warrant was valid, has not been shown to have been unreasonable.
9No oral argument was advanced as to the validity of the CDSA search warrant and crown counsel did not move under step 6 of R. v. Garofoli, [1990] 2 S.C.R. 1421 to deal with the redacted material. It is argued by the crown that since the validity of the Criminal Code search warrant was not challenged and the manner of search was not unreasonable, the issue of the validity of the CDSA warrant is moot. No illicit substances were found. I agree with that submission.
10The officers executing the search have not been shown to have conducted the search in a manner that was overwide or unreasonable given the parameters of the Criminal Code search warrant. The officers were thorough but there was no evidence of invasive search of the fabric of the property, there was no destruction and no evidence that there was examination into the interior of prescription medication bottles.
11The applicant alleges a breach of her s. 7 rights. She alleges that she was strip searched without lawful authority, that she was unnecessarily left in a state of almost total undress while police searched the home, that police failed to treat her with dignity in the presence of her child, and that she was denied physical access to her child despite her many requests.
12The applicant has not shown that a strip search of her person took place. I find that the arresting officers provided a sweater to the applicant upon apprehending her, that they did not because they did not need to find a bottom garment for her as she was already wearing one, and I find that the applicant was treated with dignity and respect upon and after arrest. Accordingly, on the basis of the allegations advanced as constituting a breach of s. 7 which I have rejected, I find that there was no breach of s. 7. It is unnecessary to opine as to whether a deficit of dignity or respect given to the applicant would constitute a breach of s. 7 rights and I will not do so. There is no charter right to physical contact with another individual on demand.
13The following are the facts as I find them:
Breach of s. 7
14On February 18, 2021, at 8:35 a.m. police officers went to the applicant’s apartment to effect the arrest and to execute the search warrants. After giving a “knock and announce” and repeating it with no response, D.C. Swaine used a key to open the lock. There was a chain on the door. An officer therefore breached the door with a ram and the team entered. As they did, the applicant, who, on her own evidence, was hung over and groggy from drinking the previous night and who had just been wakened by the noise of the police entry, was in the hallway on her way to her 2 year old child. She was frightened and distraught and her concern was for her child.
15The team effecting the arrest and execution of the search warrants were aware that the applicant had been a complainant in a human trafficking prosecution and was considered a possibly vulnerable person. Aware that the arrest could be traumatic, two female officers were assigned to the team and were given the task of making the arrest, maintaining custody of the applicant and transporting her to the station. The balance of the team were male officers.
16Upon entry into the apartment, D.C. Swaine, the lead officer on the search, encountered the applicant in the hallway. According to his evidence, the applicant was wearing pants of some kind but was naked above the waist. The evidence that the applicant was wearing a bottom garment was corroborated by other officers who described the garment variously as tights, fleece pants or yoga pants. The applicant testified that she was wearing only thong style underwear and nothing else. I find that the applicant’s lower body was clothed with a bottom garment other than mere underwear and I do not accept that she was naked except for a thong. The police are in any case not in control of what an arrested person may or may not be wearing upon apprehension.
17D.C. Swaine announced to the applicant that she was under arrest. He told her what the charges were and he told her that she could talk to a lawyer at the station. He did not advise her fully of her rights to counsel including duty counsel and the telephone number. He immediately turned her over to D.C. Woolfenden, one of the two female officers who were to take custody of her. D.C. Swaine left the applicant and proceeded with the search.
18At 8:40 a.m. D.C. Woolfenden advised the applicant that she under arrest and told her what the charges were. The applicant was crying and hysterical. I find that the officer put her mind to the giving of rights to counsel and decided not to do so at that time. Her reason was that because the applicant was hysterical, her comprehension might have been compromised.
19P.C. Almond, the other female officer, joined D.C. Woolfenden in taking custody of the applicant. The applicant was not placed in cuffs. P.C. Almond immediately went to get a sweater for the applicant so that the applicant could cloth her upper body. There is no evidence that P.C. Almond got any garment other than a sweater for the applicant upon arrest and no evidence that the applicant at any time asked for clothing. Had the applicant been in a state of almost total nakedness, one would expect evidence of a request for clothing and evidence that P.C. Almond fetched both top and bottom garments for her.
20The applicant testified that it seemed like hours that she was left in a state of undress but that it was actually 15 to 20 minutes. In later testimony she stated that it was 10 to 15 minutes. I accept her evidence that it felt like hours but reject her estimate that it was 10 to 15 or 15 to 20 minutes. A photograph of the applicant taken by Officer Wang, a member of the search team, at 8:52 a.m. shows the applicant fully clothed and having very long jewel encrusted nails.
21The applicant testified at one point that she was not given clothing until taken to the bathroom after starting to take off jewelry in the dining area. At another point, she testified that she was given clothing before she went into the bathroom. She clearly did not cut her nails until she was in the bathroom. I infer therefore that she was fully clothed no later than 8:52 and that she was fully clothed before she was taken to the washroom.
22There was no objective basis for the applicant to testify that she was essentially naked for either 15 to 20 or 10 to 15 minutes as there is no evidence that she referred to a clock at any time. Far more plausible is the evidence of the two female officers that the applicant was given a sweater to clothe her upper body right away, and I infer from the absence of evidence of the officer giving her a bottom garment and the absence of any evidence of request for clothing that the applicant was wearing a bottom garment upon the entry of police into the apartment and fully clothed promptly after being apprehended.
23The applicant’s main concern was the care for her daughter. She wanted to hold her daughter and to be able to reach her mother to come and look after the child. She did not want the Children’s Aid Society to be involved. The officers were amenable to the applicant making a call to her mother but her cell phone was without power and had to be put on the charger which was located in the dining area.
24While the applicant sat in the dining area in the custody of the two female officers and waited for the cell phone to charge, D.C. Woolfenden mentioned to the applicant that her jewelry would have to come off once she was taken to the station. The officer suggested that it would be easier if she were to remove her jewelry there, in her own home. I find that the officer gave the applicant an option of removing her jewelry before going to the station and that the applicant chose that option.
25The applicant was at the time wearing multiple pieces of jewelry, some of which were attached to body piercings, among them, her lip, a nipple and her navel. She also had extremely long jewel encrusted nails.
26While seated at the dining table the applicant started to remove her jewelry, starting with her rings. To give her privacy to remove jewelry from her torso and because the applicant also wanted to use the toilet and to smoke a cigarette, the officers took her into the bathroom. For security reasons, they stayed with her while she used the toilet and smoked a cigarette. I do not fault the officers for so doing. I find that the applicant removed her body piercing jewelry herself, and that she did so without removing her clothing, instead lifting and lowering her garments to permit access to the jewelry. She had trouble removing the jewelry from her lip piercing because of the length of her nails and she therefore cut her nails before proceeding with that removal. D.C. Woolfenden assisted the applicant with the clasp on her necklace. I do not find that the officers assisted with removal of jewelry other than the clasp of the necklace and I do not find that the applicant was subjected to a strip search.
27Because any clothing with strings would have the strings cut off at the station, D.C. Woolfenden fetched alternative clothes for the applicant to change into. I am not persuaded that providing a change of clothing and being present while the alternative clothing is put on amounts to a strip search as there was no element of search. D.C. Woolfenden was aware of the criteria that would justify a level 3 search, she was aware that such a search required prior approval, and she was of the view that a strip search was unnecessary in the circumstances since the applicant had just wakened from sleep.
28The applicant testified that she was asked, while in the bathroom and after having used the toilet, to bend over the bathtub and cough. This testimony is in support of the contention that she was subjected to what was in effect a cavity search. This was put to the two female officers both of whom stated that they did not make such a request or demand of the applicant.
29I find the applicant not to have been a reliable witness and am unable to accept her testimony. Her evidence was internally inconsistent on important points that I have mentioned above and the unreliability or lack of credibility of her evidence was underscored in the course of her testimony about a photograph of herself found on her cell phone. She testified that it was taken in 2016 and that she clearly remembered the day and the occasion when it was taken as it was an outing with her mother and her daughter. As her daughter was only 2 years old in 2021, her testimony, however positively asserted, cannot have been true that the photograph was taken in 2016. The applicant, upon being confronted with contradictions in her testimony, attributed them to her having “PTSD”.
30The applicant testified that she asked repeatedly to be able to hold her daughter and was denied this request. I find that this was untrue. All of the officers who testified and who were questioned on the point denied refusing to let the applicant hold her child. On her own evidence, at one point when the child expressed a desire to come to her, she instructed the child to stay in the living room with the male who had been in the apartment the previous night, Mr. Downey. There is in any case no authority that there is a right of physical contact with another person on demand, whether a child or other.
31The onus is on the applicant to show on a balance of probabilities that she was subjected to a strip search without prior authorization. I find her evidence not reliable and not credible and she has not met that onus.
32I find no breach of s. 7.
s. 10(b)
33The arrest took place at approximately 8:40 a.m. At 9:06 a.m. P.C. Almond read to the applicant her rights to counsel from the back of the police notebook. There was therefore a 26 minute delay. While D.C. Woolfenden advanced a tenable rationale for not reading the full text of the rights to counsel to the applicant immediately on arrest, that rationale did not, in my view, maintain validity throughout the period. Before taking the applicant to the bathroom to allow her to use the toilet and to have a cigarette, the applicant had already started to remove her jewelry at the dining table at the officer’s suggestion and advice that jewelry often gets lost at the station. She had already expressed her wishes to contact her mother to make arrangements for the care of her daughter.
34In my view, if the applicant had the presence of mind to address the foregoing tasks that needed to be attended to, she also had the presence of mind to comprehend rights to counsel and that would have been apparent to the officers. While there is no moment in time that can be identified as the one when the applicant was no longer hysterical and when a conveyance of information could effectively be given, I am nevertheless satisfied that it must have been some minutes before 9:06 by which that time, the applicant had had a chance to use the toilet, to have a cigarette, to cut her nails and to remove her jewelry.
35When P.C. Almond read to the applicant her rights to counsel, D.C. Woolfenden again advised the applicant of the charges against her. The applicant stated that she understood and that she wanted to speak to a lawyer at the station. By 9:19 the applicant’s cell phone was sufficiently charged for use. Between that time and 9:30, the applicant was permitted to use her cell phone to talk to her mother and arrange for her to come to look after her child. As the applicant’s mother did not drive, the officers made arrangements for a police officer to go to the mother’s residence to transport her to the apartment. The applicant also went through her telephone to locate numbers that she might need after the telephone was seized. While the applicant found the numbers, D.C. Woolfenden wrote the numbers down for her.
36There is no suggestion in this case that the applicant wanted to speak to a lawyer while in her home, or that she asked to do so, or that such a communication would have been practicable and reasonable. The apartment was small and was occupied by approximately 8 officers conducting a search as well as by an unnamed male who had spent the night there. As in R. v. Pileggi, 2021 ONCA 4 at 75 – 78 confidentiality could not have been afforded unless the applicant were permitted to use a closed room without police presence. That would have entailed risk of destruction of evidence as well as risk to safety (see also: R. v. Taylor, 2014 SCC 50 at 27).
37By 9:46 the applicant was in handcuffs and en route to the station in the custody of the female officers. To protect her dignity and privacy, the officers had arranged for the transport vehicle to be in the basement so that the applicant would not have to be taken through the lobby. There was some difficulty getting out of the garage resulting in slight delay and the applicant arrived at the station at about 10:11 a.m. where they waited for the sally port to be opened. At about 10:21 a.m. the applicant was paraded before the booking sargeant, followed by a pat down search. No level 3 search was applied for or conducted. The applicant was provided with a washroom visit and food. At 10:43 D.C. Woolfenden called the applicant’s lawyer and at 10:46 the applicant spoke privately with her counsel.
38Apart from information relating to arranging for care of the applicant’s child to which no objection is made, there is no evidence that any officer attempted to elicit information from the applicant. There is no evidence of unreasonable or inordinate delay in implementation of s. 10(b) rights. I find that the applicant’s priorities while in the apartment were to arrange for child care. This had to await charging of her cell phone so that she could speak to her mother. It was also she who wanted to retrieve telephone numbers from her cell phone. These and the removal of jewelry at home, which was in the applicant’s interest, expanded the time it took from arrest to departure for the station where the applicant could be given privacy to speak with her lawyer.
39Unlike situations such as in R. v. Rover, 2018 ONCA 745, the applicant did not languish in a cell for hours while the police followed a policy of delaying affording rights to counsel while they proceeded with other aspects of the investigation. There is no evidence in this case of any intentional delay and in my view, the lapse of two hours from arrest to a private telephone communication with counsel was neither unreasonable nor inordinate in these circumstances.
40I find no breach of the implementational aspect of s. 10(b).
s. 8
41At 9:55 am, P.C. Caron accessed the Applicant’s cell phone to try to ascertain the identity of the male found in the apartment. To do that he looked into her Snapchat application. He also changed the passcode on the phone in order to facilitate subsequent police search of the contents. Police officers are aware that where a cell phone is locked with a passcode, technicians may or may not be able to get access to the contents of the phone. The warrant for search of the cell phone was not issued until March 25, 2021. There were no exigencies to bring the officer’s search of the cell phone within the constraints of R. v. Fearon, 2014 SCC 77 at 83.
42The search by P.C. Caron was warrantless and therefore presumptively unreasonable.
43The applicant argues that there were multiple breaches of s. 8 around the access to the cell phone contents. It is said that it was a breach of s. 8 for P.C. Caron to look at the contents of the phone and a separate breach in the act of using the applicant’s password to open the phone. It is said that the obtaining of the passwords must have been by stealth.
44There is no evidence upon which to conclude how the officer obtained access to the contents of the telephone. I find that the applicant was not asked by any officer for the passcode and that she did not give her passcode to any officer. The applicant did not want to reveal her passcode to the officers as she had loaded onto the phone a program about getting arrested. Officer Caron has no recollection of whether the phone was in locked or unlocked state when he obtained physical possession. He did not recall ever hearing anything about the passcode being discussed among officers at the scene. There is no evidence that any other officer obtained the passcode. If officer Caron received possession of the phone in unlocked state, he would not have had to unlock it using a passcode. If he received it in locked state, he would have to have used the passcode to unlock it. There is no evidence that he was privy to the applicant’s passcode.
45On this evidentiary record I am not able to conclude how P.C. Caron obtained access to the contents of the phone. The ascertainable facts therefore do not establish an additional element of intrusion into the privacy interests of the applicant.
46What is an appropriate remedy for the two breaches of the Charter?
47In the case of the breach of s. 8 by way of search of the applicant’s cell phone in advance of obtaining a search warrant to do so, the proportionate and appropriate remedy is exclusion of the evidence found in the cell phone. As the crown concedes this, there is no need to articulate the analysis in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
48The breach of the informational component of s. 10(b) was minor. The total delay to the reading of the full informational text of an arrestee’s rights to counsel was 26 minutes and D.C. Swaine had advised the applicant at the outset upon encountering her that she could speak to a lawyer at the station if she wished. There was a rational justification for refraining from reading the full text of rights to counsel forthwith upon arrest as it was reasonable for the officer to believe that the applicant, being in an hysterical state, would not be able to absorb the information at that point in time. In my view, the applicant’s hysterical state was an exceptional circumstance. There is no evidence that the delay had an impact on the applicant or on what she said or did.
49The delay had no connection to the seizure of the physical evidence under the search warrants despite the two occurring contemporaneously and I find that the two are sufficiently remote that it cannot fairly be said that the real evidence was obtained in a manner that infringed the applicant’s charter rights.
50In my view, neither of the two charter infringements alone nor the combination of the two would justify exclusion of the real evidence seized under the original Criminal Code search warrant. A fortiori, a stay, a remedy appropriate only in the most grievous and clearest of cases, is not warranted.
51The products of the search of the cell phone is excluded from evidence at trial.
52The application for exclusion of the physical evidence seized on the February 18, 2021 execution of the search warrant is dismissed.
53In the event that there is a conviction, it will be within the province of the sentencing judge whether and the extent to which the charter breaches as I have found them should be taken into account in imposing penalty.
Low J. Released: September 12, 2023