COURT FILE NO.: CR-23-043-00
DATE: 2023 12 15
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
BIRHAN OSMAN
J. Vlacic, for the Crown (respondent)
S. Chung-Alvarez, for the accused (applicant)
HEARD: October 11, 12, and 13, 2023, in-person at Brampton
Restriction on publication: Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict. This publication ban has expired on February 28, 2024.
REASONS FOR DECISION
The Honourable JUSTICE Ranjan K. AGARWAL
I. INTRODUCTION
[1] On December 6, 2020, the accused Birhan Osman and two other men were stopped by Peel Regional Police during its annual Festive R.I.D.E campaign. The police found a gun in the car. Osman was arrested and charged with several offences, including possession of a firearm under section 92(1) of the Criminal Code, RSC 1985, c C-46, unauthorized possession in a motor vehicle under section 94(1), and possession of a firearm with ammunition under section 95(1).
[2] Osman applies for an order that the evidence obtained by the police against him should be excluded under section 24(2) of the Canadian Charter of the Rights and Freedoms, on the basis that the evidence was obtained in a manner that infringed or denied his constitutional rights.
[3] As case management judge under section 551.3 of the Criminal Code, I dismiss Osman’s application. I agree with Osman that the police breached his Charter rights by conducting an unlawful search, unlawfully detaining him, and failing to immediately inform him of his section 10(b) right.[^1] But the admission of the evidence obtained by the police—a gun and two statements he made while detained—won’t bring the administration of justice into disrepute.
[4] The Crown also seeks an order that the statements made by Osman are admissible under the common law confessions rule. The first statement was made spontaneously. As a result, it’s admissible. The other wasn’t made to the police so it’s not presumptively inadmissible under that rule.
II. BACKGROUND FACTS
[5] The Festive R.I.D.E. campaign is a random stop program that targets alcohol and drug-impaired drivers during the holiday season. On December 6, 2020, there were at least 10 officers participating in a stop program on Mississauga Road, near Embleton Road. At around 133am, Officer Steve Lord, who was supervising the program, randomly stopped a white Acura car for mandatory alcohol screening. Lavan Paleswaran was the driver. Jayson Jeyakanthan was in the front passenger seat. Osman was in the back seat, behind Jeyakanthan.
[6] Officer Quin Haywood asked Paleswaran if he had anything to drink that night. Paleswaran responded that he had two beers. Officer Haywood administered a roadside alcohol screening test. Paleswaran blew a “warn” (i.e., a Blood Alcohol Concentration of 50 to 99mg/100mg of blood).
[7] While doing the AST, Officer Haywood and Officer Lord (who was now near the car) smelled a “strong odour” of raw or fresh cannabis coming from the car (i.e., not burnt cannabis). Officer Lord could smell it while standing at the rear of the car with only the driver’s side window open.
[8] Officer Haywood asked the men if they had any cannabis in the car. He doesn’t recall how they responded. Officer Haywood, from the driver’s side, and Officer Lord, from the passenger side, each then told the men that they planned to search the car under the Cannabis Control Act, 2017, SO 2017, c 26, Sched 1. The officers made independent determinations to do so.
[9] In response, Jeyakanthan produced an open, black bottle with cannabis in it to Officer Lord. At the hearing, Officer Haywood said he believed that there was a “lot more cannabis” than just the small bottle that Jeyakanthan presented because of the strong smell coming from the car. Also, in his experience, when “somebody produces something right away”, it’s because they don’t want the police looking for more. That said, Officer Haywood and Officer Lord acknowledged that they each decided to search the car based on the smell alone.
[10] Officer Haywood and Officer Lord don’t have any specialized experience in odor detection (there’s no such training or course). They’ve completed training provided by the Ontario Police College and for the R.I.D.E. program on the detection of drugs and impairment (including the difference between raw cannabis and burnt cannabis). At that time, Officer Haywood had been a police officer for 2-3 years; Officer Lord for around 15 years.
[11] The police each told the men to get out of the car (again, Officer Haywood from the driver’s side and Officer Lord from the passenger side). They searched them for weapons (not cannabis)—the men were told to raise their hands and lift their jacket and waistband up for the search.
[12] After the pat-down search, Office Haywood and Officer Lord each told the men to stand on the sidewalk while they searched the car for cannabis. As the men walked across the curb lane towards the sidewalk, Osman turned back, and asked Officer Lord if he could get his cell phone from the car. Osman told Officer Lord that the phone was in the backseat being charged, and pointed it out to Officer Lord (the Crown seeks to rely on these statements).
[13] The phone was on top of a satchel in the back footwell, connected to a charging port. Officer Lord told him to wait until the search was finished. At the hearing, Officer Lord acknowledged that he could’ve given Osman the phone since Osman wasn’t the subject of the investigation and it was obviously not cannabis. Osman walked to the sidewalk. At some point, Officer Bannister was near the men watching them.
[14] Officer Lord then searched the vehicle for cannabis. At 138am, he found a loaded semi-automatic handgun in the satchel. Officer Lord and Officer Haywood drew their firearms, pointed at the three men, and told them to get on the ground. The men were arrested, handcuffed, and in custody by 141am. While the men were prone on the ground being cuffed, Jeyakanthan yelled angrily, “whoever gun that is, speak up now. I can get in trouble for it” Osman responded that the satchel was his but he didn’t know where the gun came from (the Crown also seeks to rely on this statement).
[15] At 152am, Officer Haywood read Osman his right to counsel in the police car. Osman said he wanted to talk to his lawyer at the station. Then, Officer Haywood cautioned Osman. In the intervening 11 minutes, the police had separated the men, searched them, made sure they had no weapons, and put Osman in the police car.
[16] Officer Haywood decided to read Osman his rights and caution him in the police car because it’s safer and quieter—he wanted to ensure that he and Osman heard each other. That said, Officer Haywood provided directions to Osman and the other men outside, including telling them they were under arrest, with no apparent difficulty.
[17] Officer Haywood said he couldn’t facilitate Osman’s right to counsel in the police car because Osman would’ve had to use the Cisco “computer phone” in the front of the police car (the officers didn’t have cell phones to facilitate calls to lawyers). Officer Haywood didn’t feel comfortable leaving Osman in the back seat alone in case something went wrong (e.g., Osman got claustrophobic). And he didn’t feel comfortable with Osman being alone in the front seat because the Mobile Data Unit has information about vehicles and people. As a result, Officer Haywood identified two concerns: (a) he would’ve had to remain in the car, denying Osman a private conversation; and (b) Osman was in the back seat and the phone was in the front, making it difficult to hear and understand what is being said.
[18] Osman was then taken to the station—he arrived at 206am but it took around 40 minutes to get into the division because of processing delays. At 249am, 548am, and again at 832am, the police left messages for Osman’s lawyer. Osman spoke to the lawyer at 943am.
[19] Officer Haywood and Officer Lord agreed that the smell of fresh cannabis might linger (for a “couple hours” according to Officer Haywood) even after the cannabis is removed. Officer Haywood agreed that he couldn’t say for sure that there was cannabis in the car when he smelled it.
[20] Officer Haywood agreed that Osman and the other men were detained when the police searched the car—he wouldn’t have let them leave. In contrast, Officer Lord said Osman was free to leave because he wasn’t the driver (under section 12(1) of the Cannabis Control Act, it’s the driver who’s liable for the offence).
[21] The police didn’t find any other cannabis in the car.
III. ISSUES AND ANALYSIS
A. Issue #1: were the statements voluntary?
[22] Though the Crown argued that Osman’s statements were voluntary in response to Osman’s application under section 24(1) of the Charter, I deal with that issue first. The common law confessions rule provides that a confession to a person in authority is presumptively inadmissible, unless the Crown proves beyond a reasonable doubt that the confession was voluntary. An involuntary confession “always warrants exclusion”. But a voluntary confession may also be excluded under section 24(2). See R v Beaver, 2022 SCC 54, at para 45.
[23] The application of the confessions rule is necessarily flexible and contextual. Though the courts have identified several relevant factors, Osman only relies on the absence of the police caution. The absence of a caution is prima facie evidence that a detainee has been “unfairly denied their choice to speak to the police” and, as a result, the statement is involuntary. See Beaver, at para 51.
[24] When the police haven’t given a caution—as here—the Crown must show that the “absence of a caution” didn’t “undermine” the detainee’s “free choice to speak to the police”. See Beaver, at para 52. Some of the relevant factors are: (a) the detainee’s awareness of being recorded; (b) indications that the detainee is directing the conversation; (c) the detainee’s awareness of what is being investigated and their alleged role in the investigation; (d) the detainee’s exercise of the right to silence by declining to answer police questions; and (e) the detainee’s eagerness to talk, although this factor can weigh for and against such a finding, depending on the circumstances. See Beaver, at para 53.
[25] To begin, Osman’s statement to Jeyakanthan doesn’t engage the confessions rule. It wasn’t a statement to the police—Osman was responding to Jeyakanthan. Though he was in the presence of the police, he wasn’t under any “pressure from the uniquely coercive power of the state” to reply. See R v Grandinetti, 2005 SCC 5, at para 35. There’s no evidence that Osman believed that Jeyakanthan was a “person in authority” (i.e., someone engaged in his arrest, detention, interrogation, or prosecution). See Grandinetti, at para 37. As a result, this statement isn’t presumptively inadmissible.
[26] In contrast, Osman’s statement to Officer Lord about the phone was a statement to the police, so it engages the rule. But it was a spontaneous statement. Spontaneous utterances are admissible if the detainee:
• knew the officer was a person in authority
• their mental capacity was intact
• there was no special relationship of trust with the officer
• they weren’t tricked or deceived by the officer
• the statement or utterance wasn’t the result of questioning by the officer.
See R v Filipe, 2008 ONCJ 385, at para 17. See also, e.g., R v Moore-McFarlane 2001 CanLII 6363 (ON CA), [2001], 56 OR (3d) 737 (CA), at para 3.
[27] Osman’s statement was spontaneous, in that it arose from “natural impulse, without any external stimulus or constraint”. See R v W(J) 1996 CanLII 1938 (ON CA), [1996], 30 OR (3d) 342 (CA), at para 7. Osman knew that Officer Lord was a police officer. There’s no evidence that Osman was incapacitated. Officer Lord didn’t trick him. Officer Lord wasn’t even questioning him. As a result, I find that the Crown has proven, beyond a reasonable doubt, that Osman’s statement to Officer Lord asking if he could get his cell phone from the car and that the phone was in the backseat being charged was voluntary.
B. Issue #2: was the search unreasonable?
[28] Everyone has the right to be secure against unreasonable search and seizure. See Charter, s 8. Here, there’s no dispute that the police searched the car, engaging the Charter and section 8 specifically.
[29] Searches or seizures conducted without a warrant are presumptively unreasonable. See Hunter v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145 at 161. If legislation authorizes a warrantless search, the state has the burden of establishing reasonableness. See Goodwin v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, at para 56. A search will be reasonable if it’s authorized by law, if the law itself is reasonable, and if the way the search was carried out is reasonable. See R v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265, at para 23. Osman doesn’t challenge the reasonableness of the police’s search power under the Cannabis Control Act (in any event, in R v Tully, 2022 ONSC 1852, Justice Charney found section 12(3) of the Act to be constitutional).
[30] No person shall drive or have the care or control of a vehicle while any cannabis is contained in the vehicle. See Cannabis Control Act, s 12(1). A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle in contravention of section 12(1) may at any time, without a warrant, enter and search the vehicle and search any person found in it. See Cannabis Control Act, s 12(3). Section 12(1) doesn’t apply if the cannabis is in its original packaging and hasn’t been opened, or is packed in baggage that is fastened closed or isn’t otherwise readily available to any person in the vehicle. See Cannabis Control Act, s 12(2).
[31] As a result, a warrantless search is authorized if the officer has reasonable grounds to believe that there’s open cannabis in the car. See R v McKenzie-Walcott, 2022 ONSC 1350, at para 7; Tully, at para 95.
[32] In assessing reasonable grounds for a search, the court must determine: (a) whether the officer had subjective reasonable and probable grounds on which to base the search; and (b) whether those grounds were justifiable from an objective point of view. See R v Fyfe, 2023 ONCA 715, at para 52.
[33] The focus of the subjective part of the test is on the good faith of the search—did the police honestly believe that there was open cannabis in the car. I believe they did—though the passage of time has impaired Officer Haywood’s memory and his notes were internally inconsistent, I’m satisfied by his and Officer Lord’s evidence and the surrounding circumstances that they both honestly believed that there was open cannabis in the car because of the strong smell.
[34] But their subjective belief wasn’t objectively reasonable.
[35] In R v Polashek 1999 CanLII 3714 (ON CA), [1999], 45 OR (3d) 434 (CA), the Court of Appeal held that the “presence of odour alone” doesn’t provide reasonable grounds to believe the occupant was committing an offence: …smells are transitory, and thus largely incapable of objective verification. A smell will often leave no trace” (at para 13).
[36] That said, the Court acknowledged that “circumstances under which the olfactory observation was made” may provide requisite reasonable and probable grounds for the search (at para 14). Though the Court of Appeal mentions “experience or training” as an example, the Court found that the trial judge in that case reasonably relied on several other facts: strong odour, the accused’s demeanour, the accused’s statement, and the time and location of the arrest (at para 15).
[37] In Polashek, the officer smelled burnt cannabis, which can linger. In contrast, in R v Gonzales, 2017 ONCA 543, at para 107, the Court of Appeal said that the smell of raw or fresh cannabis is “an observation” that speaks to an “offence that was then ongoing”. But there were other factors in Gonzales that grounded the trial judge’s finding that the search was reasonable: the officer’s experience, including in dismantling grow ops, and that the accused’s van had large, sealed boxes.
[38] Indeed, in every case cited by the parties, the police’s search was based on something else in addition to smell:
• in R v Hoang, 2013 ONCA 430, the trial judge found reasonable grounds for an arrest based on the small of raw cannabis, the officer’s experience, and his “observations” of the accused (at para 4)
• in R v Valentine, 2014 ONCA 147, the officer reasonably arrested the accused based on the smell of raw marijuana and “his finding the cash and the second cell phone and his observations about the appellant’s misconduct during the course of his interaction with the police” (at para 56)
• in McKenzie-Walcott, the officer smelled cannabis and saw a large, green cannabis stem in the car (at para 3)
[39] See also R v Moulton, 2023 ONCJ 140. In that case, the court found that a search based on the smell of burnt and fresh cannabis was reasonable because the officer also saw cannabis shake on the accused (at para 219).
[40] Ultimately, no “bright line rule” prohibits the presence of cannabis odour as the source of reasonable grounds for an arrest. But what is dispositive are the “circumstances under which the olfactory observation was made.” Sometimes, police can convince a trial judge that their training and experience can yield a “reliable opinion of present possession.” See Gonzales, at para 97.
[41] Here, the police decided to search the car based on smell alone, before Jeyakanthan produced the bottle. So the issue presented here is whether the smell of raw cannabis was enough to justify a search.
[42] I’m not satisfied it was. First, both officers agreed that the smell of raw cannabis can linger (up to two hours). The same concern that existed in Polashek exists here—Osman and the other men could have handled raw cannabis outside the car, before the stop, and the smell could’ve lingered in the car. Though the Court of Appeal in Gonzales acknowledged that the smell of raw cannabis may support an inference that an offence is ongoing, I don’t read the Court’s decision as saying that it’ll do so in all cases (especially in the face of uncontradicted evidence that the smell of raw cannabis can also linger for a reasonably long time).
[43] Second, there were no other circumstances that justified the search. Though Officer Haywood and Officer Lord relied on their training, it was mainly about the detection of drugs and impairment, and not odour detection (indeed, Officer Haywood said the training was “little”—they burned a bit of cannabis and showed the differences between the smells). Though both officers have experience in cannabis investigations, there was little evidence about the scope and depth of this experience. For example, there was no evidence on how many times they’ve been asked to distinguish between raw cannabis and burnt cannabis, or when. The police haven’t convinced me that their training or experience yielded a “reliable opinion” that Osman and the other two men had open cannabis in the car.
[44] As a result, I find that Osman’s right against unreasonable search and seizure was breached when the police entered and searched the car based on the smell of raw cannabis alone. The police had no legal basis to search the car for cannabis.
C. Issue #3: was Osman arbitrarily detained?
[45] Everyone has the right not to be arbitrarily detained. See Charter, s 9. Detention is “a suspension of an individual’s liberty interest” through a “significant physical or psychological restraint at the hands of the state”. See R v Lafrance, 2022 SCC 32, at para 21.
[46] Even absent physical restraint by the state, a detention exists when a “reasonable person in the accused’s shoes” would feel obligated to “comply and that they are not free to leave.” See Lafrance, at para 21.
[47] There’s no serious debate, on the evidence presented at the hearing, that Osman was detained by the police when they told him to exit the car. Officer Haywood acknowledged as much: “…psychologically, if they were to leave, I probably…wouldn’t let them leave.” Though Officer Lord suggested otherwise, that’s an unreasonable assessment of the situation given the relevant factors. First, a reasonable person in Osman’s shoes wouldn’t believe the police were providing general assistance or making general inquiries (i.e., the circumstances giving rise to the encounter). The police told him to get out of the car because it and he would be searched for cannabis. The reasonable person would immediately understand that they were being singled out for investigation.
[48] Second, a reasonable person would conclude, based on the nature of the police conduct, that they were unfree to leave:
• the pat-down search with their hands up
• the direction by the police that the men stand on the sidewalk
• at least 10 other uniformed, armed officers close by
• Officer Bannister watching the men on the sidewalk
• Officer Lord’s refusal to return Osman’s phone until after they searched the car
[49] Finally, Osman’s perception is shaped by his age and race. He’s a 19-year-old Black man. It’s self-evident, given the power imbalance between the police and young people, especially young Black men, that Osman wouldn’t have felt that he could leave the scene voluntarily. It was the middle of a winter night. There were a dozen or so police officers. Cruisers parked in the middle of the road. Osman had been told that he’d be searched, and ordered to wait on the sidewalk. It’s implausible to think that he could’ve just walked away, at least not without wondering if he was risking his personal safety.
[50] Given my finding that the search was objectively unreasonable, the detention that followed was consequently unlawful and arbitrary. See R v Tim, 2022 SCC 12, at para 39. The police had no right to detain Osman based on the smell of raw cannabis alone.
D. Issue #4: was Osman denied his right to counsel?
[51] Everyone has the right on arrest or detention to retain and instruct counsel without delay and be informed of that right. See Charter, s 10(b). Once engaged, section 10(b) imposes both informational and implementational duties on the police. The informational duty requires the police to inform the detainee of the right to retain and instruct counsel without delay (which means “immediately”). The implementational obligation requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. This obligation also requires the police to refrain from eliciting incriminatory evidence from the detainee until they’ve had a reasonable opportunity to reach a lawyer, or the detainee has waived the right to do so. See R v Suberu, 2009 SCC 33, at paras 38, 42.
[52] Osman’s liberty is at stake. As a result, under section 7 of the Charter, he can only be deprived of that liberty in accordance with the principles of fundamental justice. Section 7 affords him the right to choose whether to speak to the authorities or to remain silent. See R v Sinclair, 2010 SCC 35, at para 25. The informational component of the section 10(b) right ensures that detainees “understand their right to remain silent, so they can make an informed decision about whether” to waive that right. See Sinclair, at para 24. These rights combine to ensure that a suspect is able to choose to speak to the police investigators that is both free and informed. See Sinclair, at para 25.
[53] Osman argues that his right to counsel (and, as a result, his right to silence) were violated three times: (a) upon being detained by the police so they could search the car for open cannabis; (b) upon being handcuffed and arrested for the gun; and (c) the delay in facilitating contact with his lawyer.
1. The Cannabis Search
[54] As I’ve found that Osman was detained by the police when they told him to exit the car so they could search it, he should’ve been informed of his right to counsel immediately. The immediacy of this obligation is only subject to concerns for “officer or public safety”. See Suberu, at para 2; R v Pileggi, 2021 ONCA 4, at paras 60-61. In other words, the police must inform a detainee of their section 10(b) right as soon as the detention arises unless there’s a safety risk.
[55] The Crown argues that a detainee’s section 10(b) right is suspended during a roadside investigation under the Cannabis Control Act. See R v Kanneh, 2022 ONSC 5413, at para 60; R v Morgan, 2023 ONSC 6855, at paras 56-57. The right to counsel, like any other Charter right in case of detention, is subject to reasonable limitations as prescribed by law under section 1 of the Charter. This limitation may be implicit in the operating requirements of a statute. See R v Orbanski, 2005 SCC 37, at para 38. But whether those operational requirements are necessary to suspend a detainee’s section 10(b) right is necessarily “case-specific”. See Orbanski, at para 47.
[56] On the facts here, I’m not persuaded that Osman’s section 10(b) right need have been delayed (for safety concerns) or otherwise suspended (for operational reasons). When the police directed Osman to exit the car, the situation was calm. At that stage, the police didn’t know about the safety risk posed by the gun. They were merely searching for an open package of cannabis. There were at least 10 other officers present, all in a relatively controlled environment. The “exigencies” of street policing didn’t arise here (for example, the police weren’t outnumbered or in a high-crime area). The police should’ve told Osman that he had a right to speak to his lawyer immediately after doing the pat-down search.
[57] Officer Lord, who was on the passenger side of the vehicle and directing Osman and Jeyakanthan, didn’t believe they were detained. The mischief from the police’s failure to inform Osman of his rights is evident. Osman made two allegedly self-incriminating statements that the Crown now wants to rely on. Officer Lord didn’t comply with his obligations under sections 10(b). As a result, the police unlawfully denied Osman his constitutional rights. This breach was independent of the other two Charter breaches.
2. The Gun Arrest
[58] Osman also argues that his section 10(b) right was denied when the police failed to advise of him of his right to counsel immediately upon being arrested for the gun. He argues that Officer Haywood should’ve done so while Osman was prone on the ground, being handcuffed. Instead, Officer Haywood waited until Osman was in the back of the police car. Of course, the Crown now seeks to rely on a potentially self-incriminating statement that Osman made to Jeyakanthan.
[59] I accept Officer Haywood’s explanation that the chaos of the post-arrest scene favored cautioning Osman and reading him his section 10(b) right in the police car. I don’t find the 11-minute interval exacerbated any legal jeopardy that Osman was facing. Now that the police had found a gun, it was reasonable, for officer and public safety, for the police to secure the scene and then, as they did, immediately turn their minds to Osman’s section 10(b) right.
3. Calling the Lawyer
[60] Finally, Osman argues that his section 10(b) right was violated when the police didn’t provide him access to a lawyer until after he was processed at the station, an hour after the arrest.
[61] I don’t find this delay in implementation to be a breach of section 10(b). In the police car, Officer Haywood asked Osman if “he wished to call a lawyer now”. Osman replied: “when I get to the station”. To give effect to the right to counsel, the police must inform a detainee of their section 10(b) right and facilitate access to that right where requested, both without delay. See R v Taylor, 2014 SCC 50, at para 25. Osman didn’t request to implement his rights until he got to the station, which is when the police called his lawyer.
[62] I will say though that if Osman had asked to speak to his lawyer immediately, I wouldn’t have found Officer Haywood’s explanation for delay reasonable. Though I appreciate that he believed that he couldn’t accommodate a private conversation between Osman and his lawyer, he didn’t really try. There was no basis for him to believe that Osman would be claustrophobic or in distress if left alone in the back seat. The sound quality of the phone is subjective—Osman may have been well able to talk to his lawyer from the back seat. More importantly, it makes no sense that the police didn’t have cell phones that can be used to call counsel in this very circumstance.
E. Issue #5: should the evidence be excluded?
[63] Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. See Charter, s 24(1). When a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it’s established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. See Charter, s 24(2).
[64] A section 24(2) inquiry examines the effect of admitting evidence obtained in breach of the Charter on public confidence in the justice system over the long term, based on three lines of inquiry: (a) the seriousness of the Charter-infringing state conduct; (b) the effect of the breach on the accused’s Charter-protected interests; and (c) society’s interest in the adjudication of the case on the merits. A court’s task is to balance the assessments under these three lines of inquiry to determine whether, considering all the circumstances, “admission of the evidence would bring the administration of justice into disrepute”. See R v Tim, 2022 SCC 12, at para 74.
[65] Because I’ve concluded that the police infringed sections 7, 8, 9, and 10(b) of the Charter, the gun and Osman’s statements were “obtained in a manner” that breached his Charter rights. The discovery of the gun and Osman’s statements were part of the same transaction or course of conduct. Though Osman’s statement to Jeyakanthan wasn’t to a person in authority, it’s still evidence from the Charter breaches.
[66] The unlawful detention of Osman and his subsequent arrest for the gun were “entirely consequential” on the initial unlawful search of the car. In contrast, the section 10(b) violation is additional or independent state misconduct. A consequential breach must inform the first and second stages of the section 24(2) analysis, but is unlikely to “significantly impact the overall seriousness of the Charter‑infringing state conduct” without any other state misconduct. See Zachairias, at para 2.
1. The Seriousness of the Charter-Infringing State Conduct
[67] The Charter-infringing state conduct here is at the more serious end of the “scale of culpability”. To properly situate state conduct on this scale, courts must ask whether the surrounding circumstances attenuate or exacerbate the seriousness of the state conduct. See Grant, at para. 75. Were the police compelled to act quickly to prevent the disappearance of evidence? Did the police act in good faith? Could the police have obtained the evidence without a Charter violation? Only by adopting a holistic analysis can a court properly situate state conduct on the scale of culpability. See R v McColman, 2023 SCC 8, at para 58.
[68] On one hand, the unlawful search of the car was inadvertent, not wilful. The subsequent detention and the arrest for the gun were consequential breaches—the focal point remains on the unlawful search. The police honestly believed that the smell of raw cannabis alone justified a search under the Cannabis Control Act. There’s no evidence that the police acted flagrantly or abusively.
[69] On the other hand, there seems to be a lack of training about the search power under the Cannabis Control Act in the Peel Police that contributed to this problem. It’s hard to understand how the police could know that they can’t rely on the smell of burnt cannabis alone, because the smell lingers, but believe they can rely on the smell of raw cannabis alone, even though the smell lingers. An “institutional or systemic Charter breach” is more serious than “an isolated incident”. See R v GTD, 2017 ABCA 274, at para 84, rev’d by 2018 SCC 7, endorsing the dissent.
[70] And the police didn’t inform Osman of his section 10(b) right either because Officer Haywood thought a delay was reasonable or because Officer Lord, the supervising officer on the scene, didn’t believe Osman was detained. Both explanations suggest a cavalier attitude towards the Charter rights associated with random stop programs. They may also suggest a lack of training on the section 10(b) right during roadside stops.
2. The Impact on Osman’s Charter-Protected Interests
[71] I find the breaches to be only moderately intrusive. Osman’s Charter-protected interests here are the right to silence (s 7), “individual privacy and human dignity” (s 8), protection of “individual liberty from unjustified state interference” (s 9), and the principle against self-incrimination (ss 7 and 10(b)). See Tim, at para 91; Grant, at para 77.
[72] Because Paleswaran blew a “warn”, he would’ve received an immediate driver’s-licence suspension at roadside. Osman would’ve had to get out of the car in any event. The direction to exit the car and the pat-down search were “relatively non-intrusive” to Osman’s liberty interest. See Tim, at para 93; Zacharias, at para 71.
[73] The search of the car was also relatively non-intrusive to Osman’s privacy and dignity interest. He had a “reduced expectation of privacy” in the car because it wasn’t his car and he wasn’t the driver. See R v James, 2019 ONSC 288, at para 82, rev’d by 2019 SCC 52, endorsing the dissent; R v White, 2022 NSCA 61, at para 74.
[74] Finally, the breach of Osman’s section 10(b) right was minimally intrusive. After Osman was detained so the police could search the car, they didn’t question him or probe for answers. The first statement he made was a spontaneous utterance; the other was to Jeyakanthan not the police.
[75] Discoverability helps assess the effect of this breach. The “more likely” it is that evidence would have been obtained even without the statement, the “lesser the impact of the breach” on the accused’s underlying interest against self-incrimination. The “converse, of course, is also true.” On the other hand, when it can’t be determined “with any confidence” whether evidence would have been discovered in absence of the statement, “discoverability will have no impact” on the section 24(2) inquiry. See Grant, at para 122; Tim, at para 94. Given that gun was in a satchel on the back footwell, it’s likely the police would’ve found it even if Osman had maintained his right to silence. His statement about his phone didn’t point the police to the satchel. By the time he responded to Jeyakanthan, the police had found the gun.
[76] In sum, I find that the Charter breaches arising from the unlawful search and detention and the failure to inform Osman of his right to counsel immediately had a moderate effect on his Charter-protected interests, which weakly pulls towards exclusion.
3. Society’s Interest in the Adjudication of the Case on the Merits
[77] The evidence seized is reliable and highly relevant to the Crown’s prosecution of serious offences. Gun-related offences are serious crimes. As Osman concedes, the “truth-seeking function” of the criminal trial process is better served by the admission of the evidence of the gun. See Tim, at para 96. This factor strongly favours admission of the evidence.
4. The Final Balancing
[78] The final step in the analysis involves “balancing the factors under the three lines of inquiry” to assess the effect of admission or exclusion of the evidence on the “long-term repute of the administration of justice.” Each factor must be assessed and weighed in the balance, focusing on the “long-term integrity of, and public confidence in, the administration of justice.” See Tim, at para 98.
[79] The final balancing here doesn’t call for exclusion of the evidence. The police wrongly believed that they could search cars based on the smell of raw cannabis alone. Once they made that fateful decision, the other breaches followed. Their errors led to the discovery of the gun. Guns pose a “serious danger” to the public. The public has an “obvious interest” in stopping “ever-present and ever-concerning” pervasiveness of gun violence. See R v Le, 2019 SCC 34, at para 299. The exclusion of this evidence would be intolerable to reasonable and well-informed members of the public.
IV. CONCLUSION
[80] The police’s actions here were, in an understatement, less than ideal. Likely because of poor training or inexperience, the police violated Osman’s rights not once, not twice, but three times within a few minutes.
[81] I’m reluctant to countenance the infringement of the Charter, especially considering that Osman is a young, Black man at a time when young, Black men may be brought before the court because of systemic factors. Still, the interests of justice require that this case—involving serious gun crimes—be decided on its merits.
[82] Osman’s application for exclusion of the evidence is denied. The Crown’s application that Osman’s statements are admissible is granted.
Agarwal J.
Released: December 15, 2023
COURT FILE NO.: CR-23-043-00
DATE: 2023 12 15
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
BIRHAN OSMAN
REASONS FOR DECISION
Agarwal J.
Released: December 15, 2023
[^1]: Osman didn’t expressly argue that the police breached his Charter rights by arresting him on the basis of the unlawful search. In any event, the police can’t “rely on unlawfully obtained evidence” to conduct a warrantless arrest. See R v Zacharias, 2023 SCC 30, at para 26.