Court File and Parties

COURT FILE NO.: CR-23-90000242-0000 DATE: 20231122 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – VAHID PASHAZAHIRI Applicant

Counsel: L. Precup-Pop, for the respondent A. Lepsa, for the applicant

HEARD: October 5-6, 2023

RULING

(Application Pursuant to ss. 8, 9, 10 ( b ) and 24(2) of the Canadian Charter of Rights and Freedoms)

SCHRECK J.:

[1] One afternoon in June 2022, a uniformed police officer driving through a laneway on his way to park his car prior to a pay duty shift noticed a man and a woman exchange something. Believing this to be a drug transaction, he got out of his car and placed the man, who was later identified as Vahid Pashazahiri, under arrest. A subsequent search of Mr. Pashazahiri’s belongings resulted in the seizure of a quantity of fentanyl and morphine as well as some cash. After the search was completed, the officer advised Mr. Pashazahiri of his right to counsel for the first time. It was the officer’s belief that he was only required to advise a detainee of his right to counsel “as soon as practicable” and that it was appropriate in this case not to do so until the search was completed.

[2] Mr. Pashazahiri was charged with possession of controlled substances for the purpose of trafficking and possession of the proceeds of crime. He has applied to have the evidence seized at the time of his arrest excluded on the basis that it was obtained through a violation of his s. 8, 9 and 10(b) Charter rights. He submits that the officer did not have adequate grounds to arrest him, so the subsequent search incident to arrest was unlawful. He also claims that the delay in advising him of his right to counsel was unjustified.

[3] The Crown submits that the officer had ample grounds to arrest Mr. Pashazahiri. In addition to having observed what he believed to be a drug transaction, the officer also claimed to have observed cash and pill bottles inside a bag the applicant was carrying, and the alleged transaction took place in a “high crime area.” While Crown counsel concedes that there was a violation of s. 10(b) of the Charter, she submits it was only minor and technical and does not warrant exclusion of the evidence.

[4] The evidence on the application consisted of the testimony of the arresting officer and his partner (who did not observe the arrest but assisted with the search), as well as the partner’s body camera video footage.

[5] For reasons I will explain, there are aspects of the arresting officer’s evidence that I do not accept. I do not accept that he saw what was in Mr. Pashazahiri’s hand or that he saw any money being exchanged, as he initially claimed in his testimony, nor do I accept that he saw cash or pill bottles in Mr. Pashazahiri’s bag. Ultimately, the grounds for this arrest consisted of little more than an observation of two people exchanging something. This was insufficient to establish reasonable grounds to believe that an offence had been committed.

[6] The Charter violations were serious. In particular, the s. 10(b) violation revealed a basic ignorance on the officer’s part of what the Charter required of him despite the law in this area having been well settled for many years. While the impact of the s. 10(b) violation was minimal, the impact of the s. 8 and 9 violations was significant. All of these factors favour exclusion of the evidence. The seized evidence is reliable, essential to the Crown’s case, and the offences are serious, which are all factors that favour inclusion, but not to the extent that they tip the balance. A balancing of all of the factors leads to the conclusion that the evidence must be excluded.

[7] The following reasons explain these conclusions. [1]

I. EVIDENCE

A. Prior to the Arrest

[8] On June 9, 2022, P.C. Ryan Ladurantaye, an officer with 13 years of experience, and P.C. Vanessa Lee, who had three years of experience, were assigned to a “pay duty” shift in the area of 45 The Esplanade in Toronto, which was the location of a hotel that was being used as a shelter during the COVID-19 pandemic. The officers were to engage in a “high visibility” patrol of the area bounded by Market Street to the east, Yonge Street to the west, Lakeshore Boulevard to the south and Front Street to the north. P.C. Ladurantaye explained that their purpose in patrolling this area was “to mitigate the disorderly activity and criminal activity that had increased in the area since the creation of that respite COVID shelter.” The criminal activity included drug use and trafficking, break and enter, theft, robbery and various other types of disorderly conduct.

[9] The officers’ shift was to begin at 3:00 p.m. and both officers, who were in uniform, drove to the location in their respective private vehicles. At about 2:45 p.m., they both drove into a laneway that ran between Church Street and the rear of the hotel at 45 The Esplanade on their way to a nearby parking garage where they intended to leave their cars during their shift.

B. The Arresting Officer’s Observations

(i) The Alleged Transaction

[10] At about 2:45 p.m., both officers stopped their vehicles in the laneway because it was blocked by a garbage truck. While sitting in his car waiting, P.C. Ladurantaye noticed a man and a woman standing on the north side of the laneway near the entrance of a condominium building. They were to the right of his vehicle, about 15 to 20 feet away. The man, who was later identified as the applicant, was sitting on an e-bike and facing east. The woman was standing with her back to P.C. Ladurantaye. He did not get a good look at her, but said she “looked like she was likely homeless” and that she wore “rattier clothing.” P.C. Ladurantaye testified that this was what drew his attention to her. He agreed that his notes did not contain any description of the woman and that he was unable to provide a description of her during his preliminary inquiry testimony, other than to say that her clothing was dark.

[11] P.C. Ladurantaye observed the applicant hand something to the woman. He believed that he had witnessed a “hand to hand transaction.” He testified that he had witnessed “hundreds” of such transactions throughout his career as a police officer. His partner, P.C. Lee, did not witness the alleged transaction.

[12] P.C. Ladurantaye testified that he saw the applicant holding a small baggie in his right hand. However, he had given the following evidence at the preliminary inquiry:

Q. Okay. And could you actually see the small baggie in his hand?

A. It was in – it was in – it was the baggie that was in his right hand. That’s why I ended up dealing with him, so it was a – it turned out to be a small, clear, plastic baggie. From the distance I was at, initially, I couldn’t see exactly what it was. [Emphasis added].

P.C. Ladurantaye’s explanation for the inconsistency was that he had “switched talking” and had been referring to something in the applicant’s left hand during his preliminary inquiry testimony, not the baggie in his right hand.

[13] P.C. Ladurantaye agreed that he could not see what the applicant handed to the woman and adopted his testimony at the preliminary inquiry where he had agreed that “it could have been a key, it could have been an earring, it could have been any small object.”

(ii) The Exchange of Money

[14] According to P.C. Ladurantaye, after the applicant handed something to the woman, there was “an exchange of money.” During his examination in-chief, P.C. Ladurantaye testified that he could not see the specific denominations of the bills. Later in his testimony, he clarified that while it was his belief that the woman gave the applicant money, this belief was based on “speculation” and not his observations.

(iii) The “Tightening” of the Applicant’s Hand

[15] P.C. Ladurantaye got out of his car and approached the applicant with the intention of placing him under arrest. As he did so, he saw the applicant’s right hand “tighten” around what he was holding.

(iv) The Contents of the Applicant’s Bag

A. P.C. Ladurantaye’s Evidence

[16] According to P.C. Ladurantaye, the applicant was wearing a cross-body satchel with a camouflage pattern slung over his left shoulder and across the right of his body. He testified to having noticed a trend in recent years for people to use cross-body satchels to conceal drugs or firearms. He agreed, however, that such bags had in fact become more popular in general, not only among those who commit crimes.

[17] P.C. Ladurantaye testified that he could see into the satchel and observed a couple of loose $20 bills and some orange prescription medication containers. According to P.C. Ladurantaye, these observations “cemented” his belief that he had witnessed a drug transaction.

B. The Body Camera Video

[18] It is clear from P.C. Lee’s body camera footage that the applicant had a shoulder bag over his body that was black, not camouflage patterned. Some $20 bills and two pills bottles, one orange and one blue, were found in the bag, together with a wallet, an envelope, some aluminum foil and some plastic bags. The only items with a camouflage pattern were a vest the applicant was wearing over his jacket and a fanny pack that was found inside another black bag.

C. The Arrest

[19] After approaching the applicant, P.C. Ladurantaye grabbed his right wrist and told him to open his hand. He complied and P.C. Ladurantaye observed that he was holding a small Ziploc baggie. At that point, P.C. Ladurantaye told the applicant that he was under arrest for trafficking a Schedule I substance. According to P.C. Ladurantaye, the applicant had in fact been under arrest as soon as he grabbed his hand.

[20] The applicant began to tell the officer that he “wasn’t dealing” but was giving something to his friend so that she would not go into withdrawal. P.C. Ladurantaye told him that “anything he said could be used in court.” He subsequently told the applicant on several occasions not to say anything.

D. The Seizures

[21] The applicant was handcuffed and walked over to P.C. Ladurantaye’s car, where he was searched. By this point, P.C. Lee had exited her car and had activated her body camera at 3:15 p.m. The subsequent events were captured on the video recording.

[22] The searches of the applicant’s belongings resulted in the seizure of 20.62 grams of fentanyl, 10.5 morphine pills and $726 in cash said to be the proceeds of crime.

E. Right to Counsel

[23] At 3:30 p.m., after the searches were completed, P.C. Ladurantaye advised the applicant of his right to counsel for the first time. He gave the following evidence with respect to why he did so at that time:

Q. Okay. And what is your understanding about when you’re meant to read an arrested person their rights to counsel?

A. As soon as practicable, as in I – I want to read them as soon as possible, but for this, I felt that the search had to be conducted because it’s – it is a drug arrest, and once he’s handcuffed and once’s he’s finished being searched, he was seated, and then I took the time to read him his rights to counsel.

Q. Okay. And why didn’t you provide him rights to counsel earlier?

A. I had – I wanted to finish getting the search completed. I told him about the jeopardy he is in right at the beginning, and I advised him not to say anything with regards to it. So hopefully he would know not to say anything that would possibly incriminate himself further, make him well aware of his jeopardy, and once the search was conducted, then I read him his rights to counsel. So I had made – I had felt that I had made efforts to protect his rights multiple times as best I could so that he wouldn’t say anything because there’s nothing within his rights to counsel that says don’t talk to or you’re going to be – what you say is going to be given up as evidence. That’s in the caution that follows, so I wanted to make sure that I did my best to make sure that he was aware of his jeopardy. And then once the search was conducted and I felt it was safe and there was no danger, then I read him his rights to counsel.

[24] P.C. Ladurantaye could not say where he had learned that he had to advise detainees of their right to counsel “as soon as practicable,” only that the words “stick out in my memory.”

II. ANALYSIS

A. Sections 8 and 9 of the Charter

(i) Relevant Legal Principles

[25] The evidence at issue on this application was seized pursuant to a warrantless search. It is well established that a warrantless search is presumptively unreasonable and in violation of s. 8 of the Charter and that the Crown bears the burden of establishing on a balance of probabilities that the search was authorized by law: R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 21; R. v. Collins, [1987] 1 S.C.R. 265, at p. 278. The Crown seeks to justify the search in this case on the basis that it was authorized under the common law power of the police to search individuals pursuant to a lawful arrest: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 16. To do so, the Crown must establish that the arrest was lawful.

[26] Section 495(1)(a) of the Criminal Code gives police officers the authority to conduct a warrantless arrest of a person “if, on reasonable grounds, they believe the person has committed or is about to commit an indictable offence.” The essential legal principles governing a warrantless arrest are well settled and were recently reviewed in R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, at para. 72:

The essential legal principles governing a warrantless arrest are settled:

1. A warrantless arrest requires subjective and objective grounds to arrest. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint (R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-51; R. v. Latimer, [1997] 1 S.C.R. 217, at para. 26; R. v. Tim, 2022 SCC 12, at para. 24).

2. In assessing the subjective grounds for arrest, the question is whether the arresting officer honestly believed that the suspect committed the offence (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 17). Subjective grounds for arrest are often established through the police officer’s testimony (see, for example, Storrey, at p. 251; Latimer, at para. 27; Tim, at para. 38). This requires the trial judge to evaluate the officer’s credibility, a finding that attracts particular deference on appeal (R. v. G.F., 2021 SCC 20, at para. 81; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at para. 4).

3. The arresting officer’s subjective grounds for arrest must be justifiable from an objective viewpoint. This objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer (Storrey, at pp. 250-51; Latimer, at para. 26; Tim, at para. 24).

4. Evidence based on the arresting officer’s training and experience should not be uncritically accepted, but neither should it be approached with “undue scepticism” (R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 64-65). Although the analysis is conducted from the perspective of a reasonable person “standing in the shoes of the [arresting] officer”, deference is not necessarily owed to their view of the circumstances because of their training or experience (R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45 and 47; MacKenzie, at para. 63). The arresting officer’s grounds for arrest must be more than a “hunc[h] or intuition” (Chehil, at para. 47).

5. In evaluating the objective grounds to arrest, courts must recognize that, “[o]ften, the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete” (R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), at p. 750, per Doherty J.A.). Courts must also remember that “[d]etermining whether sufficient grounds exist to justify an exercise of police powers is not a ‘scientific or metaphysical exercise’, but one that calls for the application of ‘[c]ommon sense, flexibility, and practical everyday experience’” (R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 22, per Fairburn J.A. (as she then was), citing MacKenzie, at para. 73).

6. “Reasonable and probable grounds” is a higher standard than “reasonable suspicion”. Reasonable suspicion requires a reasonable possibility of crime, while reasonable and probable grounds requires a reasonable probability of crime (Chehil, at para. 27; R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1166). At the same time, police do not require a prima facie case for conviction before making an arrest (Storrey, at p. 251; Shepherd, at para. 23; Tim, at para. 24). Nor do the police need to establish that the offence was committed on a balance of probabilities (Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 114; see also R. v. Henareh, 2017 BCCA 7, at para. 39; R. v. Loewen, 2010 ABCA 255, 490 A.R. 72, at para. 18). Instead, the reasonable and probable grounds standard requires “a reasonable belief that an individual is connected to the offence” (MacKenzie, at para. 74 (emphasis deleted); Debot, at p. 1166). A reasonable belief exists when “there is an objective basis for the belief which is based on compelling and credible information” (Mugesera, at para. 114; see also R. v. Al Askari, 2021 ABCA 204, 28 Alta. L.R. (7th) 129, at para. 25; R. v. Omeasoo, 2019 MBCA 43, [2019] 6 W.W.R. 280, at para. 30; R. v. Summers, 2019 NLCA 11, 4 C.A.N.L.R. 156, at para. 21). The police are also not required to undertake further investigation to seek exculpatory facts or to rule out possible innocent explanations for the events before making an arrest (Chehil, at para. 34; Shepherd, at para. 23; R. v. Ha, 2018 ABCA 233, 71 Alta. L.R. (6th) 46, at para. 34; R. v. MacCannell, 2014 BCCA 254, 359 B.C.A.C. 1, at paras. 44-45; R. v. Rezansoff, 2014 SKCA 80, 442 Sask. R. 1, at para. 28; E. G. Ewaschuk, Criminal Pleadings & Practice in Canada (3rd ed. (loose-leaf)), at s. 5:40).

7. The police cannot rely on evidence discovered after the arrest to justify the subjective or objective grounds for arrest (R. v. Biron, [1976] 2 S.C.R. 56, at p. 72; R. v. Brayton, 2021 ABCA 316, 33 Alta. L.R. (7th) 241, at para. 43; Ha, at paras. 20-23; R. v. Montgomery, 2009 BCCA 41, 265 B.C.A.C. 284, at para. 27; Ewaschuk, at s. 5:40).

8. When a police officer orders another officer to make an arrest, the police officer who directed the arrest must have had reasonable and probable grounds. It is immaterial whether the officer who makes the arrest personally had reasonable and probable grounds (Debot, at pp. 1166-67).

[27] There is no issue that Cst. Ladurantaye subjectively believed that he had grounds to arrest the applicant. Thus, the issue is whether those grounds were objectively justifiable in the sense described in Beaver.

(ii) Grounds for Arrest in This Case

(a) Overview

[28] The Crown relies on the following grounds, based on P.C. Ladurantaye’s evidence:

• the applicant handed something to the woman, who then handed him money;
• the exchange took place in a laneway in an area where there had been a recent increase in criminal activity;
• the applicant “clenched his fist” when the officer approached him;
• the applicant was sitting on an e-bike and the woman was standing; and
• the officer observed loose $20 bills and pill bottles in the applicant’s bag.

[29] While I must consider each of these in order to determine whether there were objective grounds for arrest in this case, in doing so I must be cognizant of the need to avoid assessing the evidence on a piecemeal basis as it is the cumulative effect of the evidence that must be considered: R. v. Fong, 2023 BCCA 196, at para. 38; Beaver, at para. 72.

(b) The Exchange

[30] I accept that P.C. Ladurantaye saw the applicant hand something to the woman. I do not accept that he saw the applicant take whatever it was out of a small baggie. His evidence on this point was contradicted by his testimony at the preliminary inquiry, where he had said, “…it turned out to be a small, clear, plastic baggie. From the distance I was at, initially, I couldn’t see exactly what it was.” I do not accept the officer’s explanation for the inconsistency that he had “switched talking” and was referring to what he saw in the applicant’s left hand. It was clear from his evidence at the preliminary inquiry that he was referring to the applicant’s right hand.

[31] I do not accept that P.C. Ladurantaye saw the woman hand money to the applicant. While he initially testified to this effect, he later acknowledged that his conclusion that money was exchanged was based on speculation, not his observations. At the time P.C. Ladurantaye observed the exchange, the woman had her back to him.

[32] P.C. Ladurantaye’s testimony with respect to what he saw exchanged suggests that he had some difficulty separating his recollection of what he saw before the applicant’s arrest and what he came to learn after. As he acknowledged at the preliminary inquiry, it turned out that the applicant had a baggie in his hand, and it turned out that he was in possession of cash. However, distinguishing facts known prior to an arrest from those learned afterwards is critical given the well established impermissibility of ex post facto justifications for searches: R. v. Feeney, [1997] 2 S.C.R. 13, at para. 52. P.C. Ladurantaye’s failure to make this distinction and his lack of any acceptable explanation for the inconsistency between his evidence and what he said at the preliminary inquiry taint the reliability of his evidence.

(c) The Laneway

[33] The exchange took place in a laneway, which may in some circumstances suggest that the individuals involved took steps to avoid being in a location where they might be seen. In this case, however, the exchange took place in daylight in a laneway in which there were several vehicles (as is evident from P.C. Lee’s body camera video), including a garbage truck that was picking up garbage. There is no indication that the applicant or the woman were trying to hide or avoid being seen. This factor supplements the grounds for arrest only to a slight degree, if at all.

(d) The “High Crime Area”

[34] The Crown relies on the fact that the exchange the applicant was involved in took place in a “high crime area.” According to P.C. Ladurantaye, the “high crime area” in this case was not specifically the laneway where the applicant was arrested, but the broader area bounded by Market Street to the east, Yonge Street to the west, Lakeshore Boulevard to the south and Front Street to the north, an area of considerable size. [2]

[35] That this factor cannot be considered to be an objective indicium that the applicant was involved in drug trafficking was made clear in R. v. Smeltzer, 2021 ONCA 472, at para. 23:

We agree that one’s mere presence in a high-crime area is not an objective indicium that one is involved in criminal activity: R. v. O.N., 2009 ABCA 75, 448 A.R. 253, at para. 40, citing R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 47. As such, the arresting officer should not have considered this factor in determining his grounds for arrest.

See also R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 132; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 47; R. v. Palmer, 2023 ONSC 4842, at paras. 58-60; R. v. Tesfai, 2022 ONCJ 5855, at para. 99.

[36] Furthermore, areas described as “high crime” are often, if not always, areas in which residents face socioeconomic challenges and courts must be cautious not to endorse discriminatory stereotypes about poverty and crime: Smeltzer, at para. 25; United States v. Curry, 965 F.3d 313 (4th Cir. 2020), at pp. 331, 336; United States v. Black, 707 F.3d 531 (4th Cir. 2013), at p. 542. In this case, P.C. Ladurantaye appeared to believe that it was significant that the woman the applicant exchanged something with appeared to be “homeless.” There is a danger that if apparent homelessness and presence in an impoverished area are permitted to be viewed as supplementing grounds for arrest, this will lead to an erosion of Charter protections for people living in poverty, who, like other marginalized populations, are among those most in need of the Charter’s protection.

(e) “Clenching” of the Fist

[37] I have some doubt as to whether P.C. Ladurantaye would have been able to notice that the applicant “clenched his fist.” Even if he had, I do not view this as contributing to the existence of reasonable and probable grounds in any meaningful way. There is no evidence that the applicant tried to hide what was in his hand.

(f) The Applicant was Sitting on an E-bike and the Woman Was Standing

[38] I confess to having some difficulty understanding how the fact that the applicant was on an e-bike and the woman was standing can form part of the reasonable grounds to believe that this was a drug transaction. The argument, as I understand it, is that the fact the applicant had an e-bike and the woman did not gives rise to an inference that they were not travelling together, which supports a further inference that they had met at the location where they were, which supports a further inference that they met for a specific purpose, such as a drug transaction.

[39] Nowhere in his evidence did P.C. Ladurantaye say that the fact that the applicant was on an e-bike and the woman was standing formed part of his grounds for arrest. Even if he had, the reasoning which is said to make this fact relevant is, in my view, entirely speculative. There is no indication as to when the applicant or the woman arrived. They were standing outside a condominium building and the evidence is equally consistent with them having recently left that building together.

(g) The Contents of the Applicant’s Bag

[40] P.C. Ladurantaye’s evidence about seeing $20 bills and pill bottles in the applicant’s bag is critical. As I will explain, the other grounds essentially amount to no more than an observation of two people exchanging something and fall considerably short of establishing reasonable and probable grounds to believe that a drug transaction had taken place. The presence of an open bag containing cash and pill bottles could add considerable support to the conclusion that this was a drug transaction.

[41] I am unable to accept P.C. Ladurantaye’s evidence on this point for several reasons. First, for the reasons outlined earlier respecting his inability to distinguish what he observed prior to the arrest from what he discovered later, I have concerns about the reliability of his testimony.

[42] Second, P.C. Ladurantaye clearly testified to seeing the money inside a camouflage patterned cross-body satchel. However, the shoulder bag in which the bills and bottles were later found was black, not camouflage patterned. This undermines the reliability of the officer’s observations.

[43] Third, on P.C. Lee’s body camera video, I was able to observe the black shoulder bag while it was over the applicant’s shoulder and was also able to observe the search of it which resulted in finding the bills and pill bottles. It is very unlikely that P.C. Ladurantaye would have been able to see into the bag while it was on the applicant’s person. The bag appeared to be quite deep and the contents of the bag were not visible until P.C. Lee pulled the two sides of the opening on the top apart. She removed a number of items from it before finding the bills and the bottles, suggesting that they were on the bottom. While I do not think that P.C. Ladurantaye was intentionally trying to mislead the court, it appears that this is another example of how his knowledge of what was ultimately seized has affected his memory of the observations he made prior to the search.

(iii) Conclusion

[44] Based on my findings of fact, P.C. Ladurantaye’s grounds for arresting the applicant essentially amount to him seeing a man and a woman exchange something unknown in a laneway during the day while there were people around. I recognize that due regard must be had for the experience of the officer, who testified to having observed “hundreds” of drug transactions. However, his experience cannot convert what is essentially unremarkable conduct into grounds for arrest. This was not a case like R. v. Campbell-Johnson, 2022 ONSC 2027, at para. 24, on which the Crown relied, where the person who was arrested was holding a certain type of material which the officer knew from experience was often used to package drugs.

[45] In my view the following portion of the judgment in R. v. O.N., 2009 ABCA 75, 2 Alta. L.R. (5th) 72, at paras. 41-42, is directly applicable to this case:

The Crown points to the hand-to-hand exchange which, in the officer’s experience, was typical of drug transactions. But in many innocent circumstances one person may hand a small object (such as a key or an earring) to another. Without information about the individuals or the building, the fact of a hand-to-hand exchange shortly after midnight does not elevate the circumstances to the objectively reasonable level necessary to justify detention.

The trial judge appears to have placed some weight on the fact that there was no conversation as the exchange took place. But a quick innocent exchange of, say, a key, might have been preceded by an earlier telephone conversation; a jilted boyfriend might hand over an apartment key or a ring to his former partner without conversation.

See also R. v. Brown, 2012 ONCA 225, 286 C.C.C. (3d) 481, at paras.10-15; R. v. Hamilton, 2021 ONSC 1088, at paras. 58-59; R. v. Abdulatif, 2018 ONSC 2089, at paras. 7-9, 83-87; R. v. Smith, 2009 ONCJ 641, at paras. 17-18, aff’d 2011 ONCA 748, at para. 2; R. v. Blake, 2012 ONSC 2703, 259 C.R.R. (2d) 308, at paras. 70-71; R. v. S.M., 2006 ONCJ 348, 146 C.R.R. (2d) 122, at paras. 61-63; R. v. Basanaz (appeal by Quilop), 2017 ABCA 70, 49 Alta. L.R. (6th) 213, at paras. 31-33; R. v. Pope, 2015 BCSC 2391, at paras. 88-89; R. v. Gore, 2017 ABQB 167, 51 Alta. L.R. (6th) 303, at paras. 104-106.

[46] Having applied the approach set out in Beaver, I conclude that P.C. Ladurantaye’s grounds for arresting the applicant fell short of objectively constituting reasonable and probable grounds. The arrest was therefore arbitrary and violated s. 9 of the Charter. As a result, the search pursuant to the applicant’s arrest was not justified and constituted a violation of s. 8 of the Charter.

B. Section 10(b) of the Charter

[47] Section 10(b) of the Charter guarantees a person who has been arrested or detained the right to retain and instruct counsel “without delay” and to be informed of that right. In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41, the Supreme Court of Canada made it clear that this means that “the police must immediately inform them of the right to counsel as soon as the detention arises.”

[48] In this case, the detention of the applicant occurred at some time prior to 3:15 p.m., when P.C. Lee activated her body camera. He was not advised of his right to counsel until 3:30 p.m. The Crown concedes that this delay constituted a violation of s. 10(b) of the Charter.

C. Section 24(2) of the Charter

(i) “Obtained in a Manner”

[49] Section 24(2) of the Charter allows a court to exclude evidence if admitting it would bring the administration of justice into disrepute where the evidence was “obtained in a manner” that infringed or denied a Charter right. In this case, the seized drugs were clearly “obtained in a manner” that breached ss. 8 and 9 of the Charter as the search was purported to be justified by the arrest, which I have found was made without grounds.

[50] The drugs were also “obtained in a manner” that breached s. 10(b) of the Charter, given the close temporal link between the seizure and the violation: R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38; R. v. Tim, 2022 SCC 12, 467 D.L.R. (4th) 389, at para. 78; R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 82. The Crown does not suggest otherwise.

[51] As a result, the court must determine whether admitting the evidence would bring the administration of justice into disrepute by considering the three lines of inquiry described in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

(ii) The Grant Lines of Inquiry

(a) The Seriousness of the Charter-Infringing State Conduct

[52] The first line of inquiry requires the court to situate the seriousness of the Charter-infringing state conduct in issue on a continuum between minor, technical or inadvertent breaches on one end and wilful or reckless disregard of Charter rights on the other. The closer the conduct lies to the more serious end of the continuum, the greater the need for the court to dissociate itself from it: Grant, at paras. 72-74; Le, at para. 143; Beaver, at para. 120.

[53] While I do not find that P.C. Ladurantaye acted in bad faith, the ss. 8 and 9 breaches in this case were nonetheless fairly serious. P.C. Ladurantaye testified that he believed that he had grounds to arrest the applicant as soon as he saw him exchange something with the woman, even before his purported observation of the contents of the bag. For the reasons I have explained, his grounds for arresting the applicant at that point fell significantly short of what was required. This was not a case of falling “just short” of what was reasonable: R. v. S.B., 2010 ONCJ 416, at para. 53.

[54] I find the s. 10(b) violation to be even more serious. P.C. Ladurantaye, a police officer with 15 years of experience at the time he gave evidence, testified that it was his understanding that he had to advise an arrested person of his right to counsel “as soon as practicable,” which in the context of this case meant after he had completed his search. [3] In R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, the Court viewed as serious a delay in complying with s. 10(b) that was of a similar length as in this case and which was due to the police officers being under the same misapprehension that “as soon as practicable” was the applicable standard. Writing for the Court, Jamal J.A. (as he then was) stated (at paras. 90-91):

The breach of s. 10(b) was, however, more serious. The police did not advise the appellant of his right to counsel “immediately”, as required by well-established jurisprudence under s. 10(b), but waited without justification before doing so: Suberu, at paras. 41-42. As this court recently noted, “[t]he law around s. 10(b) is clear and long-settled. It is not difficult for the police to understand their obligations and carry them out”: R. v. Noel, 2019 ONCA 860, at para. 34.

Both officers here appeared to be confused about their obligations under s. 10(b). At trial Officer King testified that she understood that, on arrest or detention, the appellant had to be informed of his right to counsel “immediately”, though she also conceded that at the preliminary inquiry she had said, “as soon as practicable”. She said that at the preliminary inquiry she may have mixed up the word “possible” and “practicable”, but she also testified that, to her, “as soon as possible” means “if it’s convenient for [her] to give rights to counsel and practical”. Officer Wong testified that his understanding was that the appellant had to be informed of his right to counsel “as soon as practicable”. He said that this had been his practice for the two years that he had been a police officer and was still his practice. He said this is what he was taught at his initial police training and what he is taught as part of his ongoing training. But “as soon as practicable” is necessarily a laxer standard than “as soon as possible” or “immediately”.

[55] The Crown attempted to distinguish Thompson on the basis that the breach in that case was due to systemic problems that were peculiar to the Peel Regional Police Service. Crown counsel submits that there is no evidence of a similar systemic problem within the Toronto Police Service. I am not sure that this is correct, as there appear to be several Toronto cases where police officers applied the “as soon as practicable” standard to s. 10(b): R. v. Bogdanic, 2023 ONCJ 358, at para. 46; R. v. Nufio, 2023 ONCJ 255, at paras. 76-83; R. v. Bennett, 2021 ONCJ 1280, at para. 35; R. v. Campoli, 2020 ONCJ 167, at para. 15; R. v. Krasauks, 2020 ONCJ 5580, at para. 24; R. v. Rampersaud, 2018 ONCJ 697, at para. 35. [4]

[56] In any event, as was stated in Thompson, at para. 95:

Even without a systemic problem, a clear breach of settled rules governing state conduct supports exclusion of evidence under s. 24(2). As noted in Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44: “[e]ven where the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear violations of well-established rules governing state conduct (R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 24-25)”; see also Noel, at para. 34.

For these reasons, I conclude that the s. 10(b) breach in this case was significantly serious.

(b) Impact of the Breach on the Applicant’s Charter-Protected Interests

[57] The second line of inquiry requires the court to consider the extent to which the breach “actually undermined the interests protected by the rights infringed”: Grant, at para. 76; Le, at para. 151. This requires the court to identify the interests protected by the Charter right in question and to then examine how seriously they were affected: Grant, at para. 77; Tim, at para. 90.

[58] Section 9 of the Charter protects “individual liberty from unjustified state interference”: Grant, at para. 20; Tim, at para. 91. As the Court observed in Le, at para. 153, “[t]he stakes are, therefore, undeniably high when a court is presented with a breach of s. 9.” In this case, the applicant was not subjected to a brief investigative detention. Rather, P.C. Ladurantaye took physical hold of him, arrested him and handcuffed him in circumstances I have found did not justify such action. The impact on the applicant’s Charter-protected liberty interests was significant.

[59] Section 8 of the Charter protects individual privacy and human dignity: Grant, at para. 78, Tim, at para. 91. This case did not involve a brief, pat-down search but, rather, an extensive search of the applicant’s person and the contents of the bags he was carrying and in which he had a significant expectation of privacy: R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569, at para. 62. The evidence would not have been discoverable absent the Charter breach, which increases its impact: Grant, at para. 122, Tim, at para. 94. On the other hand, the search did not interfere with the applicant’s bodily integrity. In all the circumstances, I conclude that the impact of the s. 8 breach was also significant.

[60] The purpose of s. 10(b) of the Charter is to assist detainees to regain their liberty and guard against the risk of involuntary self-incrimination: Suberu, at para. 40, R. v. Bartle, [1994] 3 S.C.R. 173, at p. 191. It also protects a detainee’s psychological security because access to counsel gives them “the sense that they are not entirely at the mercy of the police”: R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45; R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, at para. 52. In this case, the applicant was eventually advised of his right to counsel. There is no indication that earlier compliance with s. 10(b) would have resulted in him being able to regain his liberty. P.C. Ladurantaye did advise the applicant that he ought not to say anything, which reduces the impact of the breach: Grant, at para. 96. In any event, the Crown does not seek to rely on any of the applicant’s utterances. In all the circumstances, the impact of the s. 10(b) breach was minimal: R. v. Desilva, 2022 ONCA 879, 421 C.C.C. (3d) 177, at para. 101.

(c) Society’s Interest in an Adjudication of the Case on Its Merits

[61] Factors relevant to society’s interest in an adjudication on the merits include the reliability of the evidence, the importance of the evidence to the prosecution’s case, and the seriousness of the offence at issue: Grant, at paras. 79-84; Beaver, at para. 129.

[62] In this case, the evidence is reliable and critical to the Crown’s case. The offences at issue involve the alleged possession of fairly significant quantities of extremely harmful substances for the purpose of trafficking. All of these factors strongly favour inclusion of the evidence.

(iii) Final Balancing

[63] The final step in the s. 24(2) analysis was described in Beaver, at paras. 133-134:

The final step in the s. 24(2) analysis involves weighing each line of inquiry to determine whether admitting the evidence would bring the administration of justice into disrepute. This balancing has a prospective function: it aims to ensure that evidence obtained through a Charter breach does not cause further damage to the justice system. It is also societal in scope: its goal is not to punish the police but to address systemic concerns involving the broad impact of admitting the evidence on the long-term repute of the justice system (see Grant, at paras. 69-70 and 85-86; Le, at para. 139; Tim, at para. 98).

When undertaking this weighing exercise, “it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry” (Lafrance, 2022 SCC 32, 472 D.L.R. (4th) 1, at para. 90 (emphasis in original)). “[W]hen the two first lines, taken together, make a strong case for exclusion”, the third line of inquiry “will seldom tip the scale in favour of admissibility” (Lafrance, at para. 90). The third line of inquiry “becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence” (R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63, per Doherty J.A.; see also R. v. Chapman, 2020 SKCA 11, 386 C.C.C. (3d) 24, at paras. 125-26 and 130). It is possible that admitting evidence obtained by particularly serious Charter-infringing conduct will bring the administration of justice into disrepute, even if the conduct did not have a serious impact on the accused’s Charter-protected interests (Le, at para. 141). But where the cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting the evidence, the administration of justice will not be brought into disrepute by its admission.

[64] In this case, the first two lines of inquiry pull towards exclusion to varying degrees. The ss. 8 and 9 Charter violations, although neither technical nor trivial, are less serious than the s. 10(b) violation. On the other hand, they had a greater impact on the applicant’s Charter-protected interests. While the third line of inquiry favours inclusion, it does not tip the balance in favour of admissibility: R. v. Lafrance, 2022 SCC 32, 472 D.L.R. (4th) 1, at para. 90; R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63; R. v. Scopel-Cessel, 2022 ONCA 316, 162 O.R. (3d) 81, at para. 54. The evidence must be excluded.

III. DISPOSITION

[65] The application is granted.

Justice P.A. Schreck

Released: November 22, 2023

COURT FILE NO.: CR-23-90000242-0000 DATE: 20231122 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – VAHID PASHAZAHIRI RULING P.A. Schreck J. Released: November 22, 2023

[1] The parties were provided with a brief endorsement on November 16, 2023 indicating that the application was granted and that reasons would follow.

[2] P.C. Lee, who was not involved in the arrest, testified that there was “high drug traffic in the alleyway due to the shelter being there.” She was not asked to explain the basis for this conclusion. There was no such evidence from P.C. Ladurantaye.

[3] P.C. Lee testified that it was her understanding that a detainee should be advised of his right to counsel “immediately,” but some delay is justified “for safety reasons” or “just for control of the situation.” The Crown accepts that the delay in this case was not justified on the basis of safety concerns.

[4] The issue has also arisen in other regions of Ontario apart from Peel and Toronto: R. v. Alilovic, 2022 ONCJ 567, at paras. 13-14; R. v. Mohammed, 2022 ONCJ 280, at para. 41; R. v. Legault, 2022 ONCJ 534, at para. 78; R. v. Toth, 2021 ONCJ 2350, at para. 33; R. v. Al-Qa-aod, 2020 ONCJ 3026, at para. 19; R. v. Vasickle, 2019 ONCJ 777, 448 C.R.R. (2d) 282, at para. 119; R. v. Dia, 2019 ONCJ 6760, at para. 64; R. v. Wong, 2019 ONCJ 764, at para. 15; R. v. Lacku, 2019 ONCJ 88, 428 C.R.R. (2d) 232, at para. 9; R. v. Dwyer, 2018 ONCJ 338, 410 C.R.R. (2d) 164, at para. 33; R. v. Lima, 2018 ONCJ 6580, at para. 5; R. v. Bazely, 2018 ONCJ 876, 424 C.R.R. (2d) 133, at para. 49.