COURT FILE NO.: CR-22-50000265
DATE: 20230921
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
OSMAN AIM, and RAMONE RICHARD THOMAS
A. Miller, for the Crown
R. Lichtman, for the Defendant Aim
R. Frank, for the Defendant Thomas
HEARD: September 11, 12, 13, and 14 2023
g. roberts, j.:
[1] In the early hours of August 6, 2021, rookie police officers PC Imran Mandozai and PC Bryan Irwin pulled over a Rav4 driven by Biniam Habtamu. Ramone Thomas was sitting in the front passenger seat. Osman Aim was sitting behind the driver. The Rav4 had just turned right on a red without stopping first, cutting off the officers, who had a green light, and causing the officers to brake to avoid a collision. The officers stopped the Rav4 and spoke to the occupants. PC Irwin suspected he saw a firearm under the front passenger seat. He also saw a cannabis bud in a cannabis grinder next to the driver. The officers decided to search the car under the Cannabis Control Act (CCA). PC Irwin went to the location where he had seen what he suspected was a firearm. It was now obscured by a satchel, but peaking out of the satchel was a firearm. He called out “GUN, GUN, GUN”. At the first utterance of “gun”, all three occupants took off. PC Mandozai chased Mr. Thomas (and Mr. Thomas was arrested shortly after). PC Irwin pulled out his weapon and arrested Mr. Aim at gun point. The driver got away and is still at large.
[2] There was no issue that this was a legitimate stop under the Highway Traffic Act (HTA).
[3] There was also no issue that the Rav4, and at least the driver, was legitimately detained while the police followed up on the HTA stop, and investigated ownership and insurance.
[4] Mr. Thomas complains that the police violated his s.7 and s.8 rights by questioning him about the weed grinder.
[5] Both accused complain that the search under the CCA was a pretext to look for a firearm that the police did not have reasonable grounds to search for. The search violated s.8.
[6] Mr. Aim complains that his s.7 right to life was violated when PC Irwin drove quickly in pursuit of Mr. Thomas after placing the seized gun in the back of his cruiser without first proving it safe. It turned out to be loaded with a bullet in the chamber.
[7] Mr. Aim complains that his ss.10(a) and (b) rights were violated. He was placed in the cruiser without being told the reason for his arrest, or given the informational component of the right to counsel (RTC). When it was given to him about 18 minutes later, he asked to speak to counsel, but it was another two and a half hours before his RTC was implemented.
[8] Mr. Thomas complains that his s.7 right to full answer and defence, a principle of fundamental justice, was violated by each officer deliberately muting portions of their body worn camera (BWC) when they spoke to each other, and other officers.
[9] Both counsel seek the exclusion of the two guns found in the car pursuant to s.24(2) of the Charter as a result of the Charter violations.
[10] The search of the car was warrantless. As a result, the burden shifted to the Crown to establish it was constitutional. The Crown called PC Irwin and PC Mandozai, and tendered an agreed statements of fact in relation to PC Aaron Xavier, who was involved in the arrest of Mr. Thomas, and providing Mr. Aim with his RTC.
[11] Mr. Aim did not testify or call any evidence. Mr. Thomas did not testify, but tendered an agreed statement of facts in relation to Sargeant Hockaday, who attended the scene after the arrest for 25 minutes and 13 seconds and muted his BWC for 18 minutes and 23 seconds of that time, without explanation.
[12] After hearing all the evidence, the submissions of counsel, reading and re-reading the factums and the relevant authorities (many lengthy and complex), and bringing to bear the cool gaze of hindsight, it is apparent that these rookie officers made a number of mistakes during their encounter with the accused, some of which put their own safety unnecessarily at risk, some of which put the safety of the public and the accused unnecessarily at risk, and some of which infringed the Charter rights of the accused. But I am satisfied that these officers were trying to do the right thing in very stressful circumstances, were honest in their testimony in court, and the totality of circumstances overwhelmingly favour the admission of the guns seized into evidence.
Chronology beginning around 1:03 am August 6, 2021
[13] I begin with a chronology of events as it is important to carefully examine the circumstances as they unfolded in order assess whether, “as the situation developed, the police acted within their lawful authority”: R. v. Nolet, 2010 SCC 24 per Binnie J. at para. 4. I will address additional evidence when I analyze each alleged Charter violation.
[14] The times are based on the BWC of the arresting officers PC Mandozai and PC Irwin (made exhibits 2 and 1, respectively). They are approximate in the sense that I note the initial time that a series of observations or events begin.
[15] Around 1:03 am, a Rav4 “blows through” a red light, turning right onto Weston Road without stopping, cutting off PC Mandozai and PC Irwin, who were driving a marked police cruiser through the green light, requiring the officers to break to avoid a collision. PC Mandozai stopped the Rav4 as a result.
[16] Around 1:04 am, PC Mandozai approached the driver, and PC Irwin approached the front seat passenger. PC Mandozai explained that everything was being recorded and asked to see the driver’s license, registration and insurance. PC Mandozai also asked that the rear windows, which were heavily tinted, be rolled down. PC Mandozai testified that he did this so he would know who was in the car, which was important for his and his partner’s safety. Only after the windows were rolled down did PC Mandozai realize that there was a third man in the car, sitting behind the driver. He was wearing shorts, a sweatshirt and balaclava.
[17] The driver initially only rolled his window about a quarter of the way down. PC Mandozai asked him to roll it down further.
[18] PC Mandozai smelled burnt marijuana immediately upon speaking to the driver.
[19] The driver provided his license, but indicated that the car was a rental from a “mechanic” who “has rentals”. The driver purported to call the owner and began to search in the glove box. He passed the telephone to PC Mandozai, who asked for the name of the owner and was told “William” and a last name which was inaudible. When PC Mandozai tried to confirm the last name, the line went dead.
[20] While PC Mandozai was speaking to the driver, PC Irwin was using his hand-held flashlight to check the inside of the car. He testified that he was attempting to check all areas within arms reach of the occupants of the car for officer safety purposes. PC Irwin noticed:
- a satchel on the seat next to the rear passenger;
- a small black rectangular object under the front passenger seat that reminded him of the bottom of a pistol magazine;
- what appeared to be a marijuana grinder in the front centre console;
- ash-rimmed solo cups in the front and rear centre consoles.
[21] Around 1:04:26 am, PC Irwin asked how many people were in the car; Mr. Thomas said three, holding up three fingers.
[22] Around 1:06:06 am, PC Irwin asked the rear passenger “how old”. Mr. Aim responded 18.
[23] Mr. Thomas was using his telephone. PC Irwin asked if he was snapping and Mr. Thomas responded yes.
[24] Around 1:08:14 am, PC Irwin asked “what is that”. The driver responded it’s a weed grinder and held it out with his right hand. Mr. Thomas then had it, and PC Irwin asked him to open it, which he did. PC Irwin noticed a marijuana bud.
[25] Around 1:09:09 am, PC Mandozai asked PC Irwin to photograph the VIN number. PC Mandozai asked for the car keys before PC Irwin stepped in front of the Rav4 to photograph the VIN number (in order to avoid the risk of being run over).
[26] Around 1:09:40 am, PC Irwin walked back to the cruiser to run the VIN. He called PC Mandozai over. He noted there were grounds to search under the CCA and then asked PC Mandozai to mute. Both officers muted their BWCs.
[27] As the officers were speaking, the front passenger, Mr. Thomas, got out and started to walk away. PC Irwin turned, unmuted, and told Mr. Thomas to come back. Mr. Thomas turned as if to return to the car. PC Irwin opened the rear passenger door, PC Mandozai approached Mr. Thomas, said everyone out of the car, and Mr. Thomas began to move away again.
[28] Around 1:10:26 am, shortly after opening the rear passenger door, PC Irwin called out GUN, GUN, GUN. PC Irwin testified that the satchel he had seen on the rear passenger seat was now under the front seat and he could see the slide and pistol grip peaking out from the edge of the satchel. He saw this as soon as he opened the car door but reached down and secured the gun before calling out “GUN, GUN, GUN”. PC Irwin then reached for his own weapon.
[29] As soon as PC Irwin called out gun, Mr. Habtamu and Mr. Thomas took off running. PC Mandozai took off after Mr. Thomas.
[30] Mr. Aim got out and started to flee in the opposite direction. PC Irwin, with his gun drawn, told him to sit on the curb. Mr. Aim complied, and was handcuffed without incident. PC Irwin put Mr. Aim in the back of his cruiser without searching him, or giving him his right to counsel. PC Irwin put the satchel containing the gun (a Glock) in the trunk of his cruiser, without first proving the gun safe. PC Irwin radioed for back up.
[31] As PC Irwin waited for help, he walked up and down on the sidewalk between the Rav4 and the cruiser. He listened to, and spoke, on the radio. He testified in court that he was uncertain what to do, explaining that he was torn between staying at the scene to maintain continuity and deal with Mr. Aim, and racing to make sure his partner was safe. He testified that he decided to prioritize the safety of his partner.
[32] Around 1:13 am, PC Irwin got into his cruiser and drove to where Mr. Thomas was hiding near some dumpsters in a parking lot. He left the Rav4 unattended with the doors still open.
[33] PC Irwin helped arrest Mr. Thomas. He then immediately returned to the Rav4.
[34] Around 1:17:42 am, PC Irwin arrived back at the Rav4, and got Mr. Aim out of the car. Mr. Aim was texting or snap-chatting on his phone at the time. PC Irwin seized Mr. Aim’s phone and asked Mr. Aim to step out for a search.
[35] At 1:19 am, PC Irwin told Mr. Aim he was under arrest for being in possession of an illegal handgun, and did a pat down search. PC Irwin put Mr. Aim back into the rear of the cruiser, pulled out his memo book and gave Mr. Aim his RTC, and cautioned him. Mr. Aim indicated he wanted to speak to a lawyer, and confirmed that he understood the caution.
[36] 1:19 am back up arrived.
[37] At 1:23 am, PC Irwin returned to the Rav4 and continued his search. He began with the area under the front passenger where he first suspected that he saw a gun. He immediately pulled out a mini-Glock handgun.
[38] At 2:30 am, a transport vehicle arrived, and at 2:33 am PC Irwin handed over custody of Mr. Aim.
[39] Mr. Aim was booked into 12 Division between 3:11 and 3:20 am.
[40] At 3:36 am a message was left for Rachel Lichtman, Mr. Aim’s counsel of choice.
[41] At 3:56 am Mr. Aim was told that Ms. Lichtman had not called back. He was offered the opportunity to speak to duty counsel but declined.
Did the officers violate Mr. Thomas’s s.7 right to make full answer and defence by deliberately muting their BWC when they spoke to each other, and other officers?
[42] I begin with the alleged violation of s.7 due to both officers deliberately muting their BWC when speaking to each other, and other police officers. Although it is important to analyze the interaction step by step, chronologically, I begin with this issue because resolving it will involve an assessment of the credibility and reliability of both officers, which in turn will affect the resolution of the other Charter alleged violations.
[43] PC Mandozai and PC Irwin recorded all of their interactions with the accused, and informed the accused they were doing so, but muted their BWCs for many of their conversations with each other, and with other police officers.
[44] Counsel for Mr. Thomas accepts that there is no constitutional requirement on the police to use a BWC, but skillfully argues that once the police start to record an event, a deliberate decision to selectively mute portions of the event amounts to a s.7 violation. He relies heavily on R. v. Azfar, 2023 ONCJ 241, in support of this assertion.
[45] Counsel for Mr. Aim does not argue that the selective muting amounts to a Charter violation. Rather it calls into question the credibility and reliability of the police officers.
[46] The Crown argues that Azfar was wrongly decided, and the analysis mistaken, and I must follow the relevant authority of the Ontario Court of Appeal and the Supreme Court of Canada.
[47] Section 7 of the Charter provides that “Everyone has the right to the life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.
[48] While the principles of fundamental justice (PFJs) are works in progress, it is now trite law that they encompass the right to make full answer and defence, which includes a duty on the Crown to make full disclosure of evidence in their possession or control, and a duty on police to preserve relevant material in their possession or control so that the Crown can disclose it. Where an applicant shows disclosable evidence has been lost, this violates s.7 unless the Crown can explain the loss, and show it did not occur through unacceptable negligence (the loss may also amount to abuse of process but this is not necessary to show a violation of s.7): R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680, at paras. 20-22; R. v. Hersi, 2019 ONCA 94, 373 C.C.C. (3d) 229, at para. 30; R. v. Janeiro, 2022 ONCA 118 at para.107.
[49] It is also well established that there is no common law or constitutional right to have the state create particular evidence, or record what is obviously relevant in a particular way. The Supreme Court of Canada has recognized that there are many significant benefits to recording statements, for example, but they have declined to mandate that it be done: R. v. Oickle, 2000 SCC 38 at para. 46. The Ontario Court of Appeal has affirmed this approach, even where police deliberately bring a suspect into a police station to take a statement, and have readily available recording equipment, though the Court noted that the failure to record in such circumstances will “inevitably make the non-recorded interrogation suspect” (emphasis in original): R. v. Moore-McFarlane (2001) 2001 CanLII 6363 (ON CA), 160 C.C.C. (3d) 493 at paras. 61-65.
[50] In R. v. Azfar, Justice Porter relied on Justice Durno’s decision in R. v. Piko (2000), 6 M.V.R. (4th) 117 (Ont.Sup.Ct.) and Justice MacDonnell’s decision in R. v Khan, 2010 ONSC 3818 to distinguish Oickle and Moore-McFarlane. While those titans of the criminal law confirmed that the failure to videotape interactions in a breath testing room did not breach s.7 or s.11(d) of the Charter, they made obiter comments leaving open the possibility that the situation may be different in the context of police negligence, or a deliberate failure to record when recording facilities were available.
[51] In R. v. Piko (2000), 6 M.V.R. (4th) 117 (Ont.Sup.Ct.), for example, where the police video equipment had broken down preventing interactions in the breath room from being recorded, Justice Durno affirmed the trial judge’s conclusion that the failure to videotape what occurred in the breath room did not violate s.7 or s.11(d) of the Charter, noting:
This is not a case where police lost or destroyed evidence. Here the evidence never existed. While the trial judge would have benefited from a tape of the Appellant's condition, comments and efforts at providing a sample, there is no requirement the proceedings be recorded. [my emphasis added] Absent police negligence regarding evidence which they possessed or a deliberate avoidance of recording when the facilities were available there was no Charter violation.
[52] In R. v Khan, 2010 ONSC 3818 at paras. 12-13, which involved the police detachment running out of videotapes and thus failing to record interactions in a breath room, Justice MacDonnell noted that “a failure to create evidence cannot be equated, for constitutional purposes, with a failure to preserve evidence”. After referring to Oickle, Moore-McFarlane, Piko, and R. v. Brownlee (2008), 70 M.V.R. (5th) 61 (which affirmed and applied Piko), and affirming that there is no “constitutional or common law requirement that the police record videotape or audiotape custodial interrogations,” Justice MacDonnell added “the absence of a constitutional obligation to videotape proceedings in a breath room does not mean that a failure to do so can never lead to an infringement of the Charter”, for example where there has been a deliberate decision not to record, or the failure to record rendered the trial unfair.
[53] Piko and Khan both involved convictions for failing to comply with a demand to provide a breath sample. The breath room recording is significant not just for what an accused says but also for how the accused appears and behaves. It is itself potential evidence. I believe this context informs these obiter comments of Justice Durno and Justice MacDonnell.
[54] In other contexts, the Court of Appeal has emphasized that there is no requirement on the state, constitutional or otherwise, to conduct a particular investigation. In R. v. Darwish, 2010 ONCA 124, the trial judge held that an accused is entitled, as an aspect of the right to make full answer and defence, to have the police pursue a line of investigation if the defence could show a realistic possibility it would yield information that could assist the defence. On behalf of the unanimous Court of Appeal, Justice Doherty rejected this, explaining (at paras. 28-30):
…This formulation of the right to make full answer and defence goes far beyond any description of that right previously recognized in the case law. It is unworkable in practice. Further, it is inconsistent with the philosophy underlying the criminal justice system.
An accused does not have a freestanding constitutional right to an adequate investigation of the charges against him or her: R. v. Barnes, 2009 ONCA 432 at para. 1. Inadequacies in an investigation may lead to the ultimate failure of the prosecution, to a specific breach of a Charter right or to a civil remedy. Those inadequacies do not, however, in-and-of-themselves constitute a denial of the right to make full answer and defence.
An accused also does not have a constitutional right to direct the conduct of the criminal investigation of which he or she is the target….
[55] In R. v. Dawkins, 2021 ONCA 235, the deliberate non-disclosure of the fact that information from a confidential informant formed part of the basis for a traffic stop was potentially problematic, not because of a possible s.7 violation (due to late disclosure or trial fairness concerns), but because the trial judge did not sufficiently address the effect of this non-disclosure on the credibility and reliability of the officer involved in the stop.
[56] Based on these appellate authorities, I do not believe that the failure of police to record conversations with each other, on its own, even when deliberate and selective, violates s.7 of the Charter. There must be a link to the right to make full answer and defence in order to engage s.7. In this case, the link is not established by lost evidence; no evidence was lost. Notwithstanding the improper muting, the officers made notes about their grounds to search the car immediately after returning to their station. In addition, both officers could testify about their conversations relating to the grounds, particularly with the assistance of the BWC footage being used to refresh their memory.
[57] However, the deliberate non-recording of police to police conversations is suspicious, and may tell against police reliability or credibility. Thus the difficult question in this case is the effect of the selective, deliberate non-recording on the credibility and reliability of PC Mandozai and PC Irwin.
[58] Both PC Mandozai and PC Irwin were rookie police officers at the time of the stop. They were in the same graduating class and had only been on the road for about 15 months at the time of this arrest in August of 2021.
[59] PC Irwin testified that at the time of the stop he understood that the BWC should be muted for discussions with other officers about investigative techniques. He did not really understand what “investigative techniques” encompassed, but attempted to protect them by muting whenever he spoke with another officer. Up until learning about Azfar, this was his practice. He has since changed and now attempts to comply with the TPS policy on BWCs (exhibit 4), though he is still unclear about the exact meaning of investigative techniques.
[60] PC Mandozai testified that it was his practice in August of 2021 to mute when speaking with another officer. He based this practice on what he observed other officers do. For example, in the portion of the BWC put to him on cross-examination where he got into the car with Sargeant Hockaday, who he just met, he mutes. He noted that Sargeant Hockaday did not say anything to him about this, nor was he ever disciplined. As noted above, it was an agreed fact that Sargeant Hockaday himself muted for much of the time he was on scene.
[61] Both officers did not have experience testifying in court at the time of the stop and explained that they did not understand the courtroom implications of muting.
[62] The portions of the BWC put to PC Mandozai and PC Irwin in cross-examination generally support their evidence about their practice at the time of the stop. Both officers capture all interactions with the accused and mute when speaking to each other, or another officer. Both officers acknowledged that they now realize they should not have done this, and their full discussion about grounds was disclosable and should have been recorded. I accept their evidence that they did not understand the TPS policy about BWC, and their practice of muting police conversations was a mistake.
[63] A partial exception to the officers’ general practice of muting police only conversations occurs the first time they mute. When PC Irwin walked back to run the VIN, he called PC Mandozai over and told him there were grounds to search under the CCA. He then asked PC Mandozai to mute, and both officers mute. Both defence counsel forcefully cross-examined the officers about their decision to partially mute this conversation, and forcefully argued that they did so in order to hide the fact that they were using the CCA as a pretext to search for a gun.
[64] While I agree with defence counsel that this partial muting calls into question the credibility and reliability of both police officers, when I carefully scrutinize their evidence about what was said, I accept it.
[65] To begin, it is accepted that this was a proper stop. The grounds to stop are confirmed by PC Mendozai’s BWC. Right off the bat he explains to the driver that he stopped him because the driver “blew threw the red light” nearly hitting the police. Notwithstanding the proper basis for the stop, both officers were extensively cross-examined about bias or discriminatory thought process during their interactions with the accused. Both explained that they had been trained in bias, including unconscious bias. PC Irwin, who was pressed particularly hard, agreed that everyone has unconscious bias, including himself, and including about race. He explained that he tried to combat it by approaching every situation as a new situation, without making assumptions based on prior experiences he may have had. I believe he was trying his best to be objective and open minded throughout his interactions with the accused. If anything, I believe he did not place enough significance on the fact that the rear passenger was wearing a balaclava and shorts in August. PC Irwin explained that he did not place significance on this because it appeared to be a trend during the COVID-19 pandemic. This possible innocent explanation did not mean that wearing a balaclava in August was not significant. An individual otherwise dressed for warm August weather (Mr. Aim was wearing shorts) wearing a balaclava did stick out for PC Mandozai.
[66] PC Irwin testified that after he told PC Mandozai that there were grounds to search under the CCA, he cautioned PC Mandozai to be careful because he thought there was a gun in the car. He did not recall whether he mentioned what he saw or where, and did not note this, but when a subsequent portion of the BWC was put to PC Irwin where he was examining the mini Glock, in particular the butt and bottom, and PC Mandozai asked PC Irwin if that was what he saw, PC Irwin testified that he must have provided details of what he saw.
[67] Both counsel forcefully challenged PC Irwin on the fact that he did not respond to PC Mandozai’s questions, suggesting it was because he did not actually see anything. I do not accept this criticism. PC Irwin’s failure to respond is at least equally consistent with him implicitly acknowledging that was what he saw, in so far as he did not correct PC Mandozai. In any event I accept PC Irwin’s evidence that he had a lot on his mind at the time and could not explain his thought process in the moment. This makes sense to me in the circumstances. He had just found a gun and arrested Mr. Aim at gun point. He had then raced to the scene where Mr. Thomas appeared cornered in some dumpsters, rushed into the dumpsters, and flushed Mr. Thomas out at gun point. These were not events that involved careful contemplation that is easily explained at a later date. I expect PC Irwin was still very keyed up even later when the scene was being processed. He was certainly not engaged in the kind of careful, rational, contemplative thought that can be easily later explained. Contrary to the defence critique, PC Irwins’ answers during cross-examination make sense to me given what had just happened. If anything, this subsequent discussion provides confirmation that PC Irwin did give PC Mandozai details of the gun he saw under the front passenger seat (which proved to be a mini-Glock).
[68] I believe this portion of the BWC showing PC Irwin examining the butt of the mini-Glock also support his evidence that he was not certain that the hard rectangular object he saw under the front seat was a gun because it was similar to, yet different from, the larger police issue Glocks. He noted in his evidence that the object he saw under the front seat of the car reminded him of the end of their police issue pistol magazines, but was smaller and had a ramp shaped bottom.
[69] PC Mandozai testified that he also was in the habit of recording interactions with the public, but then muting interactions with fellow officers. He testified that PC Irwin told him he thought there was a firearm under the front seat. PC Mandozai was extremely concerned when he heard this as they had just taken their eyes off the car, and the firearm could have been moved. Later, when PC Irwin was looking at the seized gun, PC Mandozai asked if that was the butt he was talking about. PC Mandozai agreed PC Irwin may have included the detail of seeing the butt. PC Mandozai did not budge in his evidence that PC Irwin did not mention a satchel.
[70] PC Irwin’s evidence about seeing a bud in the grinder is also confirmed by the SOCO photographs of the grinder, which show it was well-used, and still contained what appear to me to be several intact leaves or buds.
[71] PC Irwin’s testified that when he returned to the car and opened the rear passenger door, the satchel that had been on the passenger side rear seat was now on the floor, and the pistol grip and rear slide was peaking out. This evidence is confirmed by the BWC, which shows the satchel in both of these locations at the times PC Irwin described: at 1:04 am the satchel was on the seat next to Mr. Aim; at 1:10 am, when PC Irwin open the rear passenger door, the satchel was under the front passenger side seat. In addition, when the gun and satchel were shown in the trunk of the cruiser, it appeared that the Glock was too big for the satchel and stuck out. During his evidence, PC Irwin also pointed out on the BWC footage where he saw the Glock sticking out of the satchel when he opened the car door. While I believe him, the image is too grainy for me to rely on it as independent confirmation. I see what PC Irwin points to as the edge of the Glock sticking out but the image is not clear enough for me to independently identity it.
[72] The evidence of both police officers that what was discussed was a gun under the front seat, and not a satchel, is supported by the fact that PC Irwin went directly to this location when opening the rear passenger door. However, the location was now covered by the satchel, with the second, larger, gun inside peaking out.
[73] PC Irwin agreed that he was trained to call gun upon seeing one, not securing one, but explained that the time between these steps was very short; momentary. It makes sense that he would secure the gun before calling it out in the circumstances, as Mr. Aim was still very close by.
[74] I do not agree that the fact PC Irwin left the scene with the rear passenger door of the Rav4 open undermines his evidence that he saw a gun in this location. There is no questions that this was a bad idea. It was also a bad idea to put Mr. Aim in the back of the cruiser without patting him down and taking his phone. But I believe PC Irwin was overwhelmed at the time, particularly with concern for the safety of his partner, who had left chasing Mr. Thomas. When PC Irwin eventually returned to the Rav4, after he returned to the scene and backup arrived, he went straight back to the location where he saw what he originally suspected was a gun under the front passenger seat.
[75] I accept PC Mandozai’s explanation that he did not initially mention meeting with the Crown and PC Irwin about the case because he forgot. He corrected himself quite quickly, without prompting. I also accept his explanation that he did not remember the Crown flagging the issues of concern because he did not believe any of them related to his conduct. This makes sense to me. It was PC Irwin’s conduct that was primarily in issue. Like PC Irwin, PC Mandozai readily acknowledged his failings, and offered frank explanations notwithstanding that they cast himself and his division in a poor light, such as the fact that he muted in front of Sargeant Hockaday, who he had never met before, and Sargeant Hockaday did nothing to correct him.
[76] PC Irwin and PC Mandozai were unequivocal that they did not discuss what happened during the stop after the fact. I believe them.
[77] Ultimately I accept the evidence of both officers about what was said during this first incident of muting. The evidence of each officer was internally consistent, and made sense in light of the circumstances and the other evidence. It was supported by footage from the BWC. There was no contradictory evidence challenging their account of what happened. Ultimately, I am satisfied that they were rookie officers, faced with a dangerous and difficult situation, who were trying their best to do the right thing.
Did police violate Mr. Thomas’ s.7 and s.8 rights when they asked him what the cannabis grinder was, and then followed up by asking him to open it?
[78] Mr. Thomas argues that the police violated his s.7 right to silence (a PFJ), and his s.8 right to be free from unreasonable search and seizure, by asking him what the weed grinder was, and following up with the request to open it.
[79] The Crown responds that these complaints are misguided, as a careful review of the BWC shows that the driver is the one who answers the first question, responding it’s a weed grinder, and it is the driver who hands the weed grinder over for Mr. Thomas to open. The driver’s Charter rights were temporarily suspended during this legitimate HTA stop: R. v. Elias; R. v. Orbanski (2005), 2005 SCC 37, 196 C.C.C. (3d) 481 at p. 496 (S.C.C.). The Crown adds that the passengers were not detained at this time, and the police were free to ask them questions. Contrary to PC Irwin’s admission to the contrary, the questions about the grinder had a HTA road safety purpose.
[80] I agree with the Crown about what happened during the stop. When the BWC was shown to both PC Irwin and PC Mandozai, it is apparent that it is the driver who answers PC Irwin’s initial question about what the weed grinder was, and it is the driver who hands the weed grinder over to Mr. Thomas to be opened in response to PC Irwin’s follow-up question. Further, I agree that these were appropriate roadside safety questions in the circumstances. The weed grinder was sitting next to an ash-rimmed solo cup, in the centre console next to the driver. While further support for the questions in not necessary, I note that PC Mandozai smelled a strong odour of burnt marijuana emanating from the driver. Although PC Irwin, who asked the questions, did not know this, or smell any odour himself, I believe that the fact of the odour provides general support for the appropriateness of the questions in the context of a road-side stop.
[81] As a result of these factual findings, I do not believe I need to go on to consider whether or not Mr. Thomas was detained at the time these questions were asked, which I believe is a necessary pre-condition for Mr. Thomas’s s.7 right to silence to be engaged. Nor do I have to consider whether Mr. Thomas had a reasonable expectation of privacy in this grinder that did not appear to be his, or this car of unknown provenance, necessary pre-conditions for his s.8 right to be free of unreasonable search and seizure to engaged. However, I note that PC Irwin did not believe Mr. Thomas was detained, at least at the time of these questions. Nor did Mr. Thomas himself appear to believe he was detained. Initially he was cooperative and chatted with PC Irwin about using Snapchat. Subsequently, when the officers conferred behind the Rav4, Mr. Thomas got out of the car and began to walk away. When the police told him to stop, he challenged then, asking why, noting it was only a traffic stop.
Did police have the authority to search the car?
[82] Mr. Aim and Mr. Thomas argue that the police used the CCA as a pretext to search for a firearm they knew they did not have grounds to search for, even on the lower standard required for a safety search. Mr. Aim and Mr. Thomas both forcefully argue that the police did not have grounds under the CCA to search the car.
[83] The Crown argues that the police had a dual purpose for the search. PC Irwin was concerned about a gun, and had a proper basis for a safety search, if not when PC Irwin first saw the black rectangular object under the front passenger seat that reminded him of the bottom of his police gun but was different, certainly by the time Mr. Thomas began to walk away from the Rav4. In addition, the police also formed proper grounds to search under the CCA.
[84] Both officers testified that they always have safety concerns with a vehicle stop, and had them during this stop. It makes sense that they did. They did not know anything about the car or the occupants. When PC Mandozai first spoke to the driver, the driver only rolled his window down part-way. Based on the BWC footage it appears about a quarter of the way down and very little if the driver and the interior is visible. PC Mandozai asked him to roll down the windows. PC Mandozai testified that he did so in order to see inside, adding that he did not know there was a third person in the back seat until the windows were rolled own. As noted, this third person, Mr. Aim, was wearing a balaclava, notwithstanding that it was August and he was otherwise dressed in shorts.
[85] While PC Mandozai was speaking to the driver, and the person on the driver’s cell phone who purported to own the car, or have rented it, PC Irwin used his flashlight to check the areas within arms distance of the occupants. He testified that he did so in order to conduct the stop safely and protect himself and his partner from harm during the stop. While doing this, he noticed a small black rectangular object under the front passenger seat. It looked like a pistol magazine but he could not see enough of it to be certain. He explained that it reminded him of his police issue gun, but it also looked different. He suspected it was a gun but testified that he was not sure, thus did not believe he had reasonable grounds to believe it was a gun, or search for it as a result.
Did the police have reasonable grounds to believe there was an imminent threat to the safety of the police or public so as to take a closer look of the area under the front passenger seat?
[86] The essential rationale underlying a safety search is simple: if the police have duty to perform, they must have the power to perform it safely. However, the precise parameters of the power, and the test for its exercise, is anything but simple. The latest word from the Court of Appeal suggests that the relevant standard or test will depend on the particular context, and the privacy interests at stake, and the high standard set out in R. v. MacDonald, 2014 SCC 43 may be lower in different contexts: R. v. Buakasa, 2023 ONCA 383 at paras. 31-35, 39-43, referring to R. v. Stairs, 2022 SCC 11 (permitting a search of the surrounding area of an accused’s home after he was arrested even where there was not a reasonable belief in imminent harm); and R. v. Tim, 2022 SCC 12 (relying on the lower Mann standard of reasonable grounds to believe police or public safety was at risk to justify a safety search incident to a lawful detention).
[87] Even accepting the high formulation of the test for a safety search set out in R. v. MacDonald at para. 40 (reasonable grounds to believe that there was an imminent threat to the safety of the public or the police and that the search was necessary in order to eliminate that threat), the standard is met in the context of a reasonable suspicion that an individual who is being confronted, or detained for investigation, has a handgun. In MacDonald, for example, an officer who knocked on Mr. MacDonald’s door in response to a noise complaint saw something “black and shiny” in Mr. MacDonald right hand, in shadow, and partially hidden by Mr. MacDonald’s right leg. The officer believed it might be a knife and pushed the door open a few more inches and saw a handgun. Police subsequently forced their way in. Both the majority and concurring opinion agreed that the police conduct was constitutional, and differed only on the correct formulation of the test for a safety search.
[88] In R. v. McGuffie, 2016 ONCA 365 at para. 52, Justice Doherty held that there is “no doubt” that a suspicion that an individual who was being investigatively detained had a handgun would provide the necessary reasonable grounds to believe there was an imminent threat to the safety of the public or the police so as to justify a pat down search for weapons:
As discussed by the dissent in MacDonald the majority’s reference to “reasonable” grounds could be confusing. However, in the circumstances of this case, there is no doubt that Constable Greenwood had sufficient grounds to believe there was an imminent threat to his safety should he confront and detain the appellant on the street for investigative purposes. That reasonable belief of an imminent threat could, in my view, be based on the reasonable suspicion that the appellant had the handgun. A cursory pat down search of the appellant was justified to eliminate that concern.
[89] More recently, in R. v. Ahmed, 2022 ONCA 640, the Court of Appeal affirmed the constitutionality of a minimally intrusive safety search of a car in the context of an investigative detention of its occupants. While investigating reports of gunshots being fired from a dark-coloured car, possibly a Dodge Charger, police detained the occupants of a car that fit that general description found proximate in time and location. One of the occupants had a history of gun violence. The men were patted down and one of the officers stuck his head through the open rear passenger door of the Charger and used his flashlight to examine the floor area, quickly (within about 7 seconds) observing a gun with an extended magazine protruding into the rear passenger footwell. The officer who found the gun did not testify, and there was no evidence of the grounds that informed his decision to search the rear of the car. As a result, the trial judge found that the search violated s.8. Justice Coroza, writing for a unanimous Court of Appeal, disagreed, explaining that the totality of the circumstances demonstrated the reasonableness of the modest safety search that was conducted.
[90] In this case, Mr. Thomas and Mr. Aim were passengers in a car while the police were engaged in a legitimate investigation of who owned the car, and whether it was insured. Defence counsel acknowledge that these checks were appropriate; indeed, that the police were duty bound to perform them.
[91] It is well established that police may “make a visual examination of the interior of a vehicle for their own safety” during a legitimate HTA detention: R. .v Gonzales, 2017 ONCA 543 at para. 56. This makes sense. As noted, if the police have a duty to perform, they must have the power to do it safely. In the circumstances of this case, it was appropriate for police to request that the car windows be rolled down so the police look inside, and to check in particular areas within arms reach of the occupants. These minimally intrusive steps were in line with the case law, and entirely appropriate in the circumstances. It was the middle of the night in August, and the back-seat passenger, who had previously been obscured by the tinted windows, was wearing shorts and a balaclava. The three occupants out-numbered the officers. It would have been irresponsible for the police to fail to take these basic precautions.
[92] As soon as PC Irwin saw what he suspected was a gun under the front passenger seat, I believe he had the power to open the rear passenger to door get a closer look and verify his suspicion. His suspicion was based on objective observations: he saw a small black rectangular object similar to, but also different from, the pistol magazine of his police Glock handgun. This suspicion, in the context of three strangers, outnumbering the officers, the back seat passenger wearing a balaclava in August, in an unidentified car the police were duty-bound to investigate, gave rise to a reasonable belief in imminent harm which permitted PC Irwin to take a closer look at what he suspected was a gun.
[93] I recognize that PC Irwin testified that he believed that what gave him the power to open the rear passenger door was grounds to conduct a CCA search, but he also testified that he was concerned about his and his partner’s safety throughout the entirety of the stop. As I have explained, I believe these legitimate safety concerns gave the police the power to take the incremental steps that they did. I also believe that there was the required correspondence between PC Irwin’s subjective belief in safety concerns, and the purpose for and objective reasonableness of the steps he took in response: R. v. Buakasa, at para. 55.
[94] To the extent that PC Irwin can be criticized in relation to his search of the car, I believe it is for not recognizing that his subjective safety concerns gave him a reasonable basis to open the rear passenger door earlier, as soon as he saw the object he suspected was a handgun. His failure to immediately take this step, and instead step away and speak with his partner, increased the dangerousness of the scene, and allowed it to get out of control. PC Mandozai summed this up when asked about the discussion with PC Irwin prior to the search: he was surprised and upset to hear about the gun because they had just taken their eyes off the car and the gun could have moved (as it turned out a second gun did move). To be clear, however, I do not intend to criticize. PC Irwin was not sitting at a desk, carefully reflecting on what happened, like I am. He was in the thick of a difficult, dangerous, fast-moving situation.
Did police have reasonable grounds to believe there was open cannabis in the car?
[95] Section 12 of the Cannabis Control Act, 2017, S.O., c. 26, Sched. 1 (CCA) provides:
(1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.
(2) Subsection (1) does not apply with respect to cannabis that,
(a) is in its original packaging and has not been opened; or
(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat.
(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.
(4) This section applies to cannabis obtained for medical purposes in accordance with Part 14 of the Cannabis Regulations (Canada) or in accordance with a court order, except in such circumstances as may be prescribed. 2018, c. 12, Sched. 1, s. 12 (2).
[96] Mr. Aim and Mr. Thomas argue that PC Irwin used the CCA as a pretext to search for the gun. In addition, even if PC Irwin subjectively believed he had grounds to search for open accessible cannabis, this belief was manifestly unreasonable. The only circumstance to support this belief was an empty weed grinder containing nothing more than residue. They argue that this is the equivalent of a drop of alcohol in an empty bottle, and this court, in R. v. Grant, 2022 ONCA 2703, has ruled that it is not sufficient to provide reasonable grounds for a search under the CCA.
[97] The first issue for me is whether I believe that PC Irwin subjectively believed there was open accessible marijuana in the car. I do. The fact that he also suspected there was a firearm in the car, which he mistakenly believed he did not have grounds to immediately investigate, does not mean he was lying about the cannabis, or using it as an improper pretext to look for the firearm. In reaching this conclusion, I am mindful that PC Irwin muted his microphone during only part of the discussion with his partner about the reasons for the search. They captured only the portion where PC Irwin says he is going to search under the CCA, but both mute for the remainder of the conversation, rapidly unmuting when they note Mr. Thomas had gotten out of the car and started to walk away. I am also mindful that muting what should be recorded, without explaining the reason for the mute, tells against credibility and reliability. That is especially true here with this partial muting of such a potentially significant conversation. However, having carefully considered the evidence of both officers, I accept it, for the reasons I have tried to explain above. I find that PC Irwin told PC Mandozai he suspected there was a gun under the front seat. He was concerned about the gun, and he was concerned about officer safety, so went directly to the location he saw the gun. But I am satisfied that he also believed there was open available cannabis in the car.
[98] The second issue is whether, based on the totality of circumstances that the police observed, it was reasonable for PC Irwin to conclude that there was open accessible cannabis in the Rav4. Whether or not reasonable grounds exist in any particular case is highly fact specific. I must look at “the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer”: R. v. Canary, 2018 ONCA 304 at paras.22-23; R. v. Chehil, 2013 SCC 49 at paras. 45-47. When I consider the relevant circumstances, I am satisfied that there were reasonable grounds to believe there was open accessible cannabis in the car. These circumstances include the following:
- Ash-rimmed solo cups in both the front and back centre consul. The fact that there is an innocent explanation for the ash (tobacco), does not mean this circumstance should be removed from the constellation of circumstances supporting the reasonableness of PC Irwin’s belief.
- The fact that the cups were in both the front and back of the car supported an inference that they had been recently used by the occupants sitting in adjacent areas. Again, the fact that the rear cup could have been left over from before Mr. Aim sat in the rear does not neutralize or negate this circumstance. It remains something that supports the reasonableness of PC Irwin’s belief.
- The presence of a weed grinder in the front consul next to the ash-rimmed solo cup, supported an inference that the cup was used as an ash tray for marijuana, not tobacco.
- The weed grinder had visible marijuana inside. Even accepting this was mere “residue”, this was only one of a number of circumstances. Further, I do not accept that marijuana residue is the equivalent of drops of alcohol in an empty bottle. The strength of drops inside an empty alcohol bottle is readily apparent. Alcohol has been well studied and the percentage is always marked on the bottle. I do not believe the same is true of unpackaged marijuana. Thus I do not accept that it is necessarily unreasonable to be concerned about a small amount of marijuana. In any event this was only part of the constellation of circumstances.
[99] PC Mandozai smelled a strong smell of burnt marijuana when speaking to the driver. PC Irwin did not smell this when speaking to Mr. Thomas, or know about it. As a result, PC Irwin did not rely on odour in forming the grounds for his belief, and I do not believe it can support the reasonableness of his belief.
Was Mr. Aim’s right to counsel (RTC) violated by delays in providing both the informational component and the implementational component?
[100] Mr. Aim was arrested at gun point immediately after PC Irwin confirmed that there was a gun in the car. PC Irwin did not tell Mr. Aim why he was arrested, or give Mr. Aim his RTC or caution. PC Irwin did not even perform a pat-down search, or remove Mr. Aim’s cell phone. PC Irwin simply handcuffed Mr. Aim and put him in the back of the police cruiser. Nor did he prove the seized gun safe. He simply put it in the trunk of the cruiser in exactly the condition he found it, peaking out of a slightly too small satchel. PC Irwin can then be heard asking for back up. He can be seen pacing between the Rav4 and his cruiser. At one point PC Irwin gets back into his cruiser then immediately gets out. He then gets back in and drives away. He leaves the Rav4 exactly as it was after the discovery of the satchel containing the Glock, pulled to the side of the road, with its doors open. It is apparent from PC Irwin’s BWC that he drives rapidly toward the location where officers had Mr. Thomas cornered between some dumpsters. Upon arriving, he parks next to another cruiser, gets out immediately, and rushes into the area of the dumpsters, flushing Mr. Thomas out.
[101] PC Irwin then gets back into his cruiser and returns to the scene where the Rav4 was pulled over. He opened the rear door to his cruiser, sees Mr. Aim on his phone and seizes the phone, takes Mr. Aim out and pats him down, then puts Mr. Aim back into the cruiser, and reads the RTC and caution from his memo book. Mr. Aim asks to speak to counsel, and confirms he understood the caution.
[102] Other officers arrive, and the scene becomes busy. PC Irwin returns to the Rav4 and goes straight to the location where he originally saw a gun after the Rav4 was pulled over, the same location he had checked earlier but found obscured by a satchel with a gun peaking out. The original gun PC Irwin suspected he saw was still under the front passenger seat. PC Irwin seized it. It was a mini-Glock. At some point, PC Irwin called for transport for Mr. Aim. He did not note when he made this call, and there was no other evidence on this point. The record is also silent about how busy the division was that night. What we know is that Mr. Aim was booked into 12 Division from 3:10 to 3:21 am. He asked to speak with counsel Rachel Litchman. PC Aaron Xavier left a message for Ms. Litchman at 3:36 am. At 3:56 am PC Litchman advised Mr. Aim that Ms. Litchman had not responded and offered to call duty counsel. Mr. Aim declined.
[103] Mr. Aim complains that there were shocking and unacceptable delays to both the informational and implementational components of the s.10(b) right to counsel. In addition, his s.10(a) right to be informed of the arrest was violated because he was not told the reason for his arrest. Further, he was not told about the discovery of the second firearm.
[104] Section 10 of the Charter provides that “Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right.”
[105] Section 10(a) ensures that an individual knows why they are being detained, so they can decide whether to submit to the detention or arrest, and so they can understand the nature of the jeopardy they face and make informed decisions in relation to their s.10(b) right to counsel, and their s.7 right to silence: R. v. Nguyen, 20008 ONCA 49 at para.20.
[106] Section 10(b) provides a detainee with the opportunity to obtain legal advice relevant to their legal situation, including their obligations, their rights, and how to exercise those rights. It is meant to assist them in regaining their liberty and guard against the risk of involuntary self-incrimination. Justice Doherty eloquently described the right to counsel as a “lifeline”:
Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated: R. v. Rover, 2018 ONCA 745 at 45
[107] Once s.10(a) has been complied with (i.e. the reason for the arrest or detention explained), s.10 (b) imposes three duties on police: the first is informational (the content of the right to counsel and the primary caution as PC Irwin read from his memo book in this case), and the second and third are implementational (they arise when the detainee express a wish to exercise the right, as occurred here, and include a duty to provide a reasonable opportunity to consult counsel, and hold off any attempt to gather evidence from the detainee until the detainee has a reasonable opportunity to reach counsel or has unequivocally waived the right to do so).
[108] The duties must be fulfilled immediately, “[s]ubject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter”: R. v. Suberu, 2009 SCC 33 at para.42; R. v. Taylor, 2014 SCC 50 at para.24; R. v. Rover, at paras. 25-26.
[109] In this case there was a delay in complying with s.10(a), a delay in providing the informational component of s.10(b), and a further delay in implementing s.10(b) opportunity to consult counsel.
[110] Beginning with s.10(a), while PC Irwin did not tell Mr. Aim why he arrested him, I agree with the Crown that he did not need to in the circumstances of this case. It is the substance of what Mr. Aim would have reasonably understood that is important, and whether it was sufficient to permit him to make a reasonable decision whether to submit to arrest and exercise his RTC: R. v. Evans (1991), 1991 CanLII 98 (SCC), 63 C.C.C. (3d) 289 at 302-3 (SCC). In this case, the reason for the arrest would have been painfully obvious to Mr. Aim. When PC Irwin opened the rear passenger door and moments later called “GUN, GUN, GUN”, all three occupants bolted at the first utterance of the word gun. Mr. Aim was slower than the occupants of the front seat to get out, but already had his hands up when PC Irwin pulled out his gun and told Mr. Aim to stop and get down. Nor do I think the discovery of a second gun in the car required PC Irwin to re-advise Mr. Aim of the reason for the arrest of re-advise him of his right to counsel. The nature of his jeopardy had not fundamentally changed.
[111] The delay in providing the informational component of s.10(b) is much more problematic. While delays in implementing the right to counsel for safety reasons are well-established in the jurisprudence, delays in providing the informational component are rare. Nonetheless there is precedent for them, such as a 7 minute delay in R. v. Gonzales, 2017 ONCA 543 at para.118, where the arresting officer was alone and the arrestee was acting suspiciously, refusing to answer questions, and being slow to produce documents; and a delay in making arrests in R. v. Graham, 2018 ONSC 6718, per Code J., aff’d 2020 ONCA 692, notwithstanding grounds to do so, where the officers were out-numbered, with no back-up, in a high crime area.
[112] There is no question in this case that the scene was dangerous and chaotic. All three occupants of the Rav4 bolted when PC Irwin uttered the first “gun”. While PC Irwin managed to arrest Mr. Aim at gunpoint close to the Rav4, the other two occupants got away and were still at large, possible armed. PC Irwin’s partner PC Mandozai, was chasing one of them, Mr. Thomas the occupant of the front seat. PC Irwin’s distress is palpable on the BWC. He paces up and down between the Rav4 and his cruisers, calls for back up, listens to the radio. He gets into and out of his cruiser. He explained in court that he was torn between securing the scene and rushing to help and protect his partner. Ultimately he prioritized the safety of his partner. While these circumstances make a delay in providing the informational component of the RTC understandable, I do not think they make it constitutionally permissible. I reach this conclusion because I do not think the stress of the scene gave rise to the kind of exceptional safety concerns that can permit a delay in providing the informational component of the RTC.
[113] I believe the situation is different with it comes to the approximately 2 and a half hour delay in implementing the right to counsel. While still exceptional, it is well established that police may delay the implementation of the right to counsel for police safety, public safety, or the preservation of evidence. For example, in R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980 (S.C.C.), the court accepted that the police could delay providing access to counsel in order to properly gain control of the scene of the arrest and search for restricted weapons known to be at the scene. Police may delay access to counsel only after turning their minds to the specific circumstances and concluding, on some reasonable basis, that some delay is justified. Where this is the case, they must take steps to minimize the delay. The Crown bears the onus to show that the delay was justified and reasonable: R. v. Keshevarz, 2022 ONCA 312; R. v. Pileggi, 2021 ONCA 4 at para.87.
[114] The evidence in this case abundantly establishes that there was no way that the police could have safely provided RTC at the scene. One suspect was still at large and, at least initially, the search of the Rav4 was incomplete – it proved to have another loaded gun inside, also with a bullet in the chamber. Officers were milling around and police appeared to be using the trunk of a cruiser as temporary storage for the seized guns. It was simply not safe or feasible to provide Mr. Aim with a cell phone and turn off the ICC as defence counsel suggests. However, the record is silent as to the reason for the length of the delay, i.e. when a call was made to transport Mr. Aim to the station, what took so long for it to arrive, and whether the delay was as short as possible. All we know is time of arrest, the time the information component was provided, and the times Mr. Aim was booked into 12 Division and calls to counsel made. Without knowing more about the timing of the call for transport, and the reason for the time it took to arrive, I do not believe the Crown has discharged its burden of showing that the implementation delay was only as long as reasonably necessary in the circumstances.
[115] It follows from this analysis that I do not find a breach of s.10(a), but I find a breach of s.10(b) in relation to both the informational and implementational components.
Did PC Irwin violate Mr. Aim’s s.7 right to security of the person by failing to prove the first gun safe, and driving at high speed with Mr. Aim in the back of the cruiser and the gun in the trunk?
[116] Mr. Aim complains that his s.7 right to “life, liberty and the security of the person” was violated by PC Irwin failing to prove the first seized gun safe (the Glock in the satchel) and then driving Mr. Aim around in the cruiser at speed with the seized gun in the trunk.
[117] I agree with Mr. Aim that this gun should have been proved safe before anyone got into a car where it was being stored (even temporarily). I would add that Mr. Aim should also have been patted down for weapons, and his cell phone taken away, before he was placed in the back of the cruiser. For all PC Irwin knew, Mr. Aim was carrying another loaded gun.
[118] However, I agree with the Crown that the evidence is insufficient to show that PC Irwin’s actions placed Mr. Aim’s life or security of the person at risk so as to engage s.7. Beginning with life, there is no evidence that PC Irwin’s actions placed Mr. Aim at an increased risk of death, directly or indirectly. PC Irwin testified that he knew the Glock to be a very safe handgun. There is no evidence that there was any flaw or issue with the Glock seized to make this assumption incorrect or even unreasonable.
[119] With respect to security of the person, while it is possible that s.7 could be engaged by psychological harm, Mr. Aim did not testify or call any evidence. Indeed, the fact that Mr. Aim was content to drive around sitting next to the very same gun, in the very same condition, while in the Rav4, suggests its presence in the back of the cruiser would not cause him psychological harm.
[120] Mr. Aim bore the onus to establish that s.7 was engaged and violated. I do not believe he discharged this onus. In R. v. Donnelly, 2016 ONCA 988 at para. 106-7, Justice Watt cautioned:
[I]t is not every qualification or compromise of a person's security that comes within the reach of s. 7 of the Charter. The qualification or compromise must be significant enough to warrant constitutional protection. To suggest that any qualification or compromise of security of the person engages s.7 risks trivializing the protections of the Charter….
Security of the person protects both the physical and psychological integrity of the individual…. For a restriction of security of the person to be established, the state action in issue must have a serious and profound effect on a person's psychological integrity….
[T]he psychological harm or prejudice must be serious….Nervous shock or psychiatric illness are not necessarily required, but something greater than “ordinary stress or anxiety” is….[citations omitted]
Should the guns seized as a result of the encounter by excluded under s.24(2) of the Charter?
[121] The SCC clarified the Grant analysis in a recent trilogy of cases,: R v Tim, 2022 SCC 12 SCC; R v Beaver, 2022 SCC 54; and R. v. McColman, 2023 SCC 8.
[122] Each branch must be carefully analyzed, and the strength of the pull to exclusion, or push to admission. evaluated, and then considered all together at the end. It is a misreading of R. v. McGuffie, 2016 ONCA 365 to consider each branch separately, resulting in a binary all or nothing score, which can simply be added up at the end. As the majority explained in McColman at para.55:
Trial courts must evaluate each of the three lines of inquiry thoroughly. A cursory review of the Grant test prevents appropriate appellate review and transforms s.24(2) from a contextual inquiry into a bright-line rule.
The seriousness of the state misconduct
[123] The first branch is not simply a matter of good faith or bad faith. Rather the state conduct must be carefully assessed and situated along the continuum between inadvertent, technical, minor, understandable mistakes, through negligence, to reckless disregard of Charter rights, to deliberate, wilful violations, finally to a pattern of Charter-infringing conduct at the most serious end. The closer to the latter, serious end, the more important it is for the Court to dissociate itself from the conduct, not to punish police, but to preserve confidence in the rule of law and avoid bringing the administration of justice into disrepute: R. v. Tim, at para. 82; R. v. Kitaitchik, 2002 CanLII 45000 (ON CA), 2002 166 C.C.C. (3d) 14 at para. 14.
[124] The majority in R. v. McColman, at para.58, adds that this analysis involves consideration of the context which may attenuate or exacerbate the seriousness of the state conduct: Were the police compelled to act quickly in order 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.
[125] PC Irwin and PC Mandozai made numerous mistakes throughout this stop and their interaction with Mr. Aim, Mr. Thomas and the driver. But I believe they flowed from being rookie officers with limited experience. It was the first gun either of them had ever seized. I believe they acted honestly, in good faith and were trying to do their best.
[126] While their misuse of the BWC revealed deficiency in training and understanding, it did not result in any Charter violation. Even if it did, however, there was no prejudice. After carefully scrutinizing their evidence, I accepted their accounts of what was said during the first occasion they muted. Nothing was lost. In addition, I note that the stop occurred not long after police began to use the BWC thus I find their mistakes understandable. In other important regards, both officers received excellent training, for example about bias, including unconscious bias.
[127] Even if I am wrong that PC Irwin lacked reasonable grounds to search under the CCA, safety concerns certainly permitted him to open the rear passenger door. Indeed, perhaps his most significant mistake was failing to realize that he had a proper basis to open the rear door as soon as he saw what he suspected was a gun. His safety, and that of his partner, the public and the accused, permitted him to take this step. In saying this, I do not intend to be critical, but rather to place the alleged s.8 violation in context.
[128] I would situate the violations of the right to counsel at the less serious end of the spectrum, even acknowledging that there is a cumulative effect to multiple violations. The violations occurred after the discovery of the guns; there was no causal connection to the discover of evidence. More importantly, a significant delay in the implementation of the RTC was inevitable. Possibly even as long as occurred, but the record is not such that I can make this finding, hence the violation. But significant delay was inevitable. Finally there were extenuating circumstances. This was a difficult, dangerous scene and the officers were under enormous stress.
[129] The violations pull very weakly, if at all, toward exclusion.
Impact on the accused’s Charter interests
[130] The second line of inquiry considers the impact of the breach on the accused’s Charter-protected interests. It asks whether the breach “actually undermined the interests protected by the right infringed”: R. v. Tim, at para.90.
[131] This involves identifying the interests protected by the relevant Charter rights and evaluating how seriously the breaches affected those interests. As with the first Grant line of inquiry, the court must situate the impact on the accused’s Charter-protected interests on a spectrum, ranging from impacts that are fleeting, technical, transient, or trivial, to those that are profoundly intrusive or that seriously compromise the interests underlying the rights infringed.
[132] The greater the impact on Charter-protected interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. This is because “admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute:” R. v. Grant, 2009 SCC 32 at para.76, cited in R. v. Tim at para.90.
[133] I set out the purpose of ss.10(a) and (b) above. These are vitally important rights. But the violations in this case had minimal impact on them. As noted, a significant implementation delay was inevitable. This would have been obvious to Mr. Aim, which further diminishes the impact of the violations: R. v. Beaver, at para.126.
[134] The violations pull very weakly, if at all, toward exclusion.
Society’s interest in adjudication on the merits
[135] The third line of inquiry considers factors such as the reliability of the impugned evidence and its importance to the Crown’s case. It asks “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion”. Reliable evidence critical to the Crown’s case will generally pull toward inclusion. The seriousness of the offence cuts both ways, and must be considered in the context of the reliability of the evidence and its importance to the Crown’s case: R. v. Tim at para.96.
[136] Further to a safety search in the course of a legitimate HTA stop, police found two loaded hand guns, a Glock and a mini-Glock, each with a bullet in the chamber ready to be fired, being driven around in a car occupied by three people, one wearing a balaclava in August. The evidence of the guns was reliable. It was the essence of the Crown’s case. The charges are of the utmost seriousness. Sadly, it has become a trite observation that violence resulting from illegal handguns is a serious problem in Toronto. The circumstances of this possession case lie at the most serious end of possession cases: these guns were being driven around a neighbourhood in Toronto ready to be used. Society has a profound interest in seeing these charges proceed to trial.
[137] The final step in the Grant analysis involves balancing the factors. This is a qualitative exercise, not capable of mathematical precision. Each factor must be assessed and weighed in the balance, focussing on the long-term integrity of, and public confidence in, the administration of justice. The balancing is prospective: it aims to ensure that evidence obtained through a Charter breach “does not do further damage to the repute of the justice system”. The balancing is also societal: the goal is not to punish the police, but rather to address systemic concerns by analyzing “the broad impact of admission of the evidence on the long-term repute of the justice system”: R. v. Tim, at para.98.
[138] In this case, the first two lines of inquiry each pull weakly toward exclusion. The third pulls strongly toward admission. Assessed cumulatively, the final balancing does not call for exclusion to protect the long-term repute of the justice system. Indeed, I believe that exclusion would damage public confidence in the administration of justice. The evidence of the guns found during the search of the Rav4 is admissible at trial.
G. ROBERTS, J.
Released: September 21, 2023
COURT FILE NO.: CR-22-50000265
DATE: 20230921
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
Osman AIM, and Ramone Richard THOMAS
REASONS FOR JUDGMENT
G. ROBERTS, J.
Released: September 21, 2023