R. v. Williams, 2024 ONSC 1170

COURT FILE NO.: CR-23-50000073

DATE: 2024-02-28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

RYAN WILLIAMS

Defendant

Gus Kim, for the Crown

Ariel Herscovitch, for the Defendant

HEARD: September 28, October 10, 11, 12, 13, 16, 17, 18, 19, 20, 2023

reasons for judgment

J. R. Presser J.

I. INTRODUCTION AND OVERVIEW

[1] Ryan Williams appeared before me on a blended Charter voir dire and trial. He was charged with four counts in an indictment, and was arraigned as follows:

• one count of possession of a loaded prohibited or restricted firearm, a Glock 19 handgun, while not the holder of an authorization or licence and not the holder of a registration certificate, contrary to s. 95(2) of the Criminal Code;

• one count of possession of a prohibited or restricted firearm, a Glock 19 handgun, knowing they were not the holder of a licence and not the holder of a registration certificate, contrary to s. 92(3) of the Criminal Code;

• one count of possession of a prohibited or restricted firearm, a Glock 19 handgun, and were not the holder of a licence and not the holder of a registration certificate, contrary to s. 91(3)(a) of the Criminal Code; and

• one count of possession of a firearm, a Glock 19 handgun, while prohibited from doing so by reason of an order made under s. 109 of the Criminal Code, contrary to s. 117.01(3)(a) of the Criminal Code.

[2] He pleaded not guilty to all charges.

[3] The firearms offences relate to a loaded prohibited Glock 19 that was found in a bag on the patio of the Little Hut bar in the Rexdale neighbourhood of Toronto on July 31, 2021.

[4] Mr. Williams was at the Little Hut bar on that night. He had left the bar briefly, and then returned shortly before six police officers arrived looking for a man (unrelated to this case) for whom there was an outstanding warrant and who they believed was at the bar. Three officers were stationed outside the bar in the parking lot. Three officers entered the bar.

[5] Surveillance videos from inside the bar show that Mr. Williams was wearing a black cross-body bag when he re-entered the bar with his friend Damaine Sitladeen, just ahead of the police. Both men walked through the bar toward the exit to the back patio. A short time later, Mr. Williams re-entered the bar from the patio without the black bag.

[6] Police Constable Walker, who was stationed outside the bar, peered through the fence surrounding the back patio. He saw a man exit the bar to the patio, bend over from the waist, and place an item down. PC Walker was suspicious. He thought the man must have been trying to hide something from the police, who would have been entering the bar around the same time. He went to look for the secreted item on the patio. He found a closed black bag between a bench on the patio and the wall. PC Walker immediately opened it and found a gun inside.

[7] All police officers agreed that from the time PC Walker found the gun until they arrested Mr. Williams in relation to it approximately 22 minutes later, no one was free to leave the bar. Most of the bar’s patrons, including Mr. Williams, were not advised that they were investigatively detained until 15 minutes after the gun was found. When police did announce that everyone was detained in relation to a firearm investigation, they did not advise anyone of the right to counsel. Aside from PC Walker holding up the black bag when he re-entered the bar and asking “anyone own this bag?” police officers did not ask any questions about the bag or the firearm at any time.

[8] Between when the gun was found and when all of the patrons were advised that they were detained, Detective Fynes and PC Walker questioned Mr. Williams about the conditions of his parole. PC Walker conducted a pat down search of Mr. Williams to confirm that he was not in possession of weapons contrary to the terms of his parole. Mr. Williams was not advised that he was investigatively detained nor advised that he had a right to counsel.

[9] Det. Saffu and PC Balloutine watched the Little Hut surveillance videos. They determined that Mr. Williams was the person who had left the black bag on the patio. PC Balloutine arrested Mr. Williams for unauthorized possession of a firearm. He did not advise Mr. Williams of his right to counsel until six minutes after his arrest. Mr. Williams said he wanted to speak to his lawyer, and gave the lawyer’s name. He was not afforded the opportunity to speak with his lawyer for a further hour and 11 minutes.

[10] Mr. Williams seeks exclusion of the gun. He argues that:

• his right to be free from unreasonable search and seizure was violated, contrary to s. 8 of the Charter, when PC Walker searched his bag without a warrant and in the absence of any other lawful authority;

• police violated his right not to be arbitrarily detained under s. 9 of the Charter when they investigatively detained him, alongside everyone else in the Little Hut bar as soon as they entered the Little Hut, or no later than when the gun was found;

• police violated his right to be informed of the reason for this detention, contrary to s. 10(a) of the Charter;

• police violated his right to counsel upon detention, contrary to s. 10(b) of the Charter;

• police violated his s. 9 rights again by arbitrarily detaining him to investigate whether he was complying with parole;

• police violated his s. 8 rights to be free from unreasonable search and seizure when they searched him during the parole investigation;

• police violated his s. 10(b) rights when they did not advise him that he had the right to counsel on that detention;

• police violated his s. 10(b) right to counsel by waiting six minutes after his arrest to advise him of the right, and by not facilitating his access to counsel for a further hour and 11 minutes;

He asks me to find that the admission of the gun in these circumstances would bring the administration of justice into disrepute.

[11] The Crown opposes the exclusion of the gun. Crown counsel concedes that there were two breaches of s. 10(b), which it characterizes as minor: the first when police investigatively detained and searched Mr. Williams during the parole investigation without advising him of the right to counsel; and the second when police announced that they were detaining Mr. Williams, and everyone in the Little Hut, for the purpose of investigating the firearm, without advising them of the right to counsel. The Crown maintains that there were no other Charter breaches here: Mr. Williams had abandoned the black bag and as such, he did not have a reasonable expectation of privacy in it such that there was no violation of s. 8; the parole investigation was not arbitrary so there was no violation of s. 9; patrons of the bar were not detained until police announced that detention, and it was not an arbitrary detention, so there was no violation of s. 9; and the delays in facilitating Mr. Williams’s access to counsel were reasonable in the context of the fluid situation, and the difficulties in ensuring that he be able to speak with counsel safely and in private. The Crown position is that the exclusion of the gun in these circumstances would bring the administration of justice into disrepute.

[12] For the following reasons, I have come to the conclusion that police violated Mr. Williams’s s. 8 rights when they searched his bag without a warrant or any other lawful excuse. I have concluded that although Mr. Williams and all the patrons of the Little Hut were detained from the time the gun was found, this was not an arbitrary detention because there were reasonable grounds to suspect that one of the people in the bar had been in unauthorized possession of the gun. However, this investigative detention did result in a breach of ss. 10(a) and 10(b) because Mr. Williams was not advised of the reasons for his detention or of his right to counsel. I have further concluded that police again violated his ss. 9 and 10(b) rights when they detained him arbitrarily to search him to investigate him in relation to a new matter, namely whether he was complying with the no weapons condition of his parole, without advising him of the right to counsel; and that they violated his s. 8 rights when they searched him as part of the parole investigation. And I have concluded that police again violated Mr. Williams’s s. 10(b) rights when they failed to advise him of the right to counsel for six minutes after his arrest and when they did not facilitate his access to counsel for an hour and 11 minutes after that. I have come to the conclusion that the admission of the evidence would bring the administration of justice into disrepute given the seriousness of the breaches and their impact on Mr. Williams’s Charter-protected interests. Mr. Williams’s Charter applications are granted. The evidence is excluded. In the absence of the gun that is the subject of all four counts in the indictment, the Crown cannot prove its case beyond a reasonable doubt. Mr Williams is acquitted of all counts.

[13] On December 18, 2023, I gave a brief oral judgment allowing the Charter applications, excluding the evidence, and finding Mr. Williams not guilty of all counts, with written reasons to follow. These are those reasons. They set out why I have allowed the Charter applications and excluded the evidence.

II. THE SECTION 8 APPLICATION

A. Overview of Applicable Legal Principles

[14] Section 8 of the Charter protects against unreasonable search and seizure. In order to establish a violation of their s. 8 rights, a person must first establish that they had a reasonable expectation of privacy in the thing searched or seized: Hunter et al. v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 159; R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128, at para. 30. A person will have a reasonable expectation of privacy in “a biographical core of information,” including information which “tends to reveal the intimate details of the lifestyle and personal choices of the individual”: R. v. Plant, 1993 70 (SCC), [1993] 3 S.C.R. 281, at p. 293.

[15] Reasonable expectation of privacy is a normative, not a descriptive or empirical standard. The normative inquiry into the reasonableness of privacy expectations is premised on questions framed in broad and neutral terms: R. v. Wong, 1990 56 (SCC), [1990] 3 S.C.R. 36, at p. 44. This means that the assessment of whether there is a reasonable expectation of privacy is “laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy”: R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 14; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 18.

[16] Whether a Charter claimant had a reasonable expectation of privacy is to be determined contextually with reference to four factors: (1) the subject matter of the search; (2) the Charter claimant’s interest in the subject matter of the search; (2) the claimant’s subjective expectation of privacy; and (4) whether the subjective expectation is objectively reasonable, having regard to the totality of the circumstances: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 32.

[17] A major factor for consideration in determining whether a subjective expectation of privacy is objectively reasonable is whether the item searched or seized was abandoned: Tessling, at para. 32. Abandonment is fatal to a reasonable expectation of privacy: Patrick, at para. 22, citing R. v. Dyment, 1988 10 (SCC), [1988] 2 S.C.R. 417, at p. 435. As explained in Patrick, at paras. 20 and 25, to determine whether an item has been abandoned, the trier of fact must determine whether the claimant’s subjective privacy interest:

. . . is one that an independent and informed observer, viewing the matter objectively, would consider reasonable in the totality of the circumstances (Edwards, at para. 45, and Tessling, at para. 19) having regard firstly to the need to balance “societal interests in protecting individual dignity, integrity and autonomy with effective law enforcement” (R. v. Plant, 1993 70 (SCC), [1993] 3 S.C.R. 281, at p. 293); secondly, whether an accused has conducted himself in a manner that is inconsistent with the reasonable continued assertion of a privacy interest and, thirdly, the long-term consequences for the due protection of privacy interests in our society

Abandonment is therefore an issue of fact. The question is whether the claimant to s. 8 protection has acted in relation to the subject matter of his privacy claim in such a manner as to lead a reasonable and independent observer to conclude that his continued assertion of a privacy interest is unreasonable in the totality of the circumstances. [Emphasis in the original].

[18] Where the claimant has succeeded in establishing that there is a reasonable expectation of privacy, a warrantless search will be prima facie unreasonable. The onus rests on the Crown to establish on a balance of probabilities that a warrantless search was reasonable: R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 32.

B. Application to this Case

(1) Evidence

[19] Surveillance videos reveal that on July 31, 2021, at approximately 8:45 pm, Mr. Williams entered the Little Hut bar for the first time that night. He had the strap of a black cross-body bag across his chest. The defendant testified that before he entered the bar, he had noticed two unmarked black police vehicles in the parking lot across the street. He recognized them as police vehicles because, he said, there was always a lot of police presence in the Rexdale neighbourhood of Toronto where he grew up.

[20] Det. Fynes testified that on the night of July 31, 2021, she was the senior officer among a group of six police officers who were looking for a wanted male by the name of Juqjuan Darling. Det. Fynes explained that a vehicle associated with Mr. Darling was parked in the lot of the plaza where the Little Hut was located. She said that police gathered in their vehicles in the side parking lot of the plaza.

[21] The defendant testified that he had been to the Little Hut bar many times before, perhaps over 50 times. It was the hangout for his social circle. He usually knew most of the people in the bar. The bar’s surveillance video depicts that upon entering the Little Hut on July 31, 2021, the defendant was warmly greeted by many other patrons in the bar.

[22] At approximately 8:51 pm, the defendant re-entered the bar from the back patio area. He was still wearing the black bag across his body. Mr. Sitladeen exited the bar through the front door. The defendant went to the bar and had a shot. A surveillance video from above the bar depicts that the defendant paid for his shot with money that came from a front pocket of his bag. There appeared to be another bill or two in the pocket of the bag. After taking his shot, the defendant exited the bar through the front door.

[23] The defendant testified that he walked back to his car where he met up with Mr. Sitladeen. He was going to drive Mr. Sitladeen home. He saw that the two black police vehicles he had seen earlier were now entering the parking lot closer to the Little Hut. He decided to return to the bar to warn his friend Sawali that police were nearby and be heading to the bar. Mr. Williams said he knew that Sawali was under conditions not to be in the Little Hut because of a bar fight there some time earlier. He was concerned for Sawali and wanted to warn him.

[24] The defendant and Mr. Sitladeen re-entered the front door of the bar at approximately 8:53 pm. Surveillance videos show that the defendant was wearing the black cross-body bag. He headed straight back to the back door of the bar because, he said, he didn’t see Sawali in the bar and thought Sawali must have been on the patio. At 8:53:07 pm, the video depicts Mr. Williams reaching up with his right hand as he walked toward the door to the back patio. He testified that he only had a package of cigarettes in the small front section of the bag. He may have had one or two bills in the bag as well. His lighter was in his pocket. He said he was reaching for his cigarettes with his hand to the bag as he exited. The defendant and Mr. Sitladeen exited to the patio.

[25] Once outside, according to the defendant, he saw Sawali sitting on the bench immediately to the right of the door from the bar. He testified that he sat down on the bench, removed his bag and placed it on the bench beside him. He told Sawali about the police vehicles as he took the cigarettes out of his bag, extracted a cigarette, and lit it. He said he put the cigarettes back into his pocket.

[26] The surveillance video shows that at 8:53:21 pm, Sawali entered the bar from the patio, walking quickly. He gestured toward his girlfriend, and they both left the Little Hut.

[27] At 8:53:31 pm, the defendant is seen on the video re-entering the Little Hut from the patio. He no longer had the black bag. He went over to the bar and sat down. Mr. Sitladeen re-entered the bar immediately after the defendant.

[28] The defendant explained that he took a couple of puffs on his cigarette after Sawali left the patio. He then saw another friend, Javonte Hylton, make a kind of frantic movement. Hylton was standing inside the bar next to the pool table within the defendant’s sightlines. The defendant testified that, reading Mr. Hylton’s body language, he thought maybe Hylton had seen something – the police – at the front door of the Little Hut. According to the defendant, this distracted him. He hurriedly re-entered the bar from the patio, forgetting his bag on the bench where he had left it.

[29] The surveillance video depicts that at approximately 8:53:27 pm, Mr. Hylton walked around the pool table to the right, making a gesture with his hands as if to ask “what’s going on?” The defendant said that this body language of Mr. Hylton’s alerted him that there was something happening in the bar. He said it caused him to be distracted, re-enter the bar, and forget his bag.

[30] The defendant agreed that he did not talk to Mr. Hylton after re-entering the bar. He said he saw Det. Fynes in the bar talking to Sakariya Farrah, and that Farrah was in handcuffs, as soon as he re-entered. He did not need to talk to Mr. Hylton to know what had prompted Hylton’s movements.

[31] In a period of approximately two minutes starting with the defendant’s re-entry to the bar at 8:53:31 pm, a number of people exited to the patio and re-entered from it. These movements are difficult to see because they happen quickly at the far upper right corner of the video. The back door to the patio is not visible because it is behind a wall. I have watched this video multiple times. What follows is what I can see on the video in these two minutes, aided by the defendant’s and Det. Fynes’s evidence on point:

• 8:53:31: The defendant re-entered the bar from the patio. Mr. Sitladeen re-entered the bar after him.

• 8:53:38: Another individual exited to the patio. The defendant identified this person as Mr. Hylton.

• 8:53:40: Mr. Hylton re-entered the bar, and exited again at 8:53:44.

• Also at 8:53:44: The defendant walked toward the bar to his left.

• 8:53:52: Mr. Hylton came back into the bar and immediately stepped out again.

• 8:53:56: Another individual stepped back into the bar from the patio. The defendant was unsure of this person’s name.

• 8:53:59: Another individual exited to the patio.

• 8:54:04: Another individual, identified by the defendant as Shamar Lennon, exited to the patio. At 8:54:08, Mr. Lennon re-entered the bar from the patio.

• Also at 8:54:08: Mr. Sitladeen exited to the patio, and Mr. Hylton re-entered the bar from the patio.

• 8:54:16: Mr. Sitladeen re-entered the bar from the patio.

• 8:54:17: Det. Saffu exited the bar to the patio.

• 8:54:25: Det. Saffu re-entered the bar from the patio.

• 8:55:17: Mr. Hylton went toward the door to the patio and appeared to look out the window to the patio but did not exit.

• 8:55:24: Mr. Lennon went toward the door to the patio and appeared to look out the window to the patio but did not exit.

• There is then a 51 second gap in the Little Hut surveillance video that runs from 8:55:39 to 8:56:30. There is no video evidence of who was exiting to or returning from the patio during this gap. The defendant testified that he was not paying attention to who was going out to the patio at the time of the gap in the video.

[32] The defendant insisted that he did not have a gun in his bag. He maintained that he did not re-enter the Little Hut from his car to dispose of the bag. He maintained that he did not hide his bag between the bench and the wall. He said that he forgot it on the bench because he was distracted by what he assumed was the police entering the bar. The defendant thought that someone else must have put the gun in his bag after he accidentally left it on the patio. He said he did not know who it might have been.

[33] PC Walker testified that he was one of the six officers who went to the Little Hut to look for Mr. Darling. He, DC Balloutine and PC Sharma were detailed to remain outside the bar, in the parking lot, in the event that Mr. Darling ran. Dets. Fynes, Saffu, and Benduski went into the bar to look for Mr. Darling. They entered the bar shortly after 8:53 pm.

[34] PC Walker said that he peered through a gap in the fence line of the Little Hut patio. He said he saw a male come out, bend over from the waist, and place an item down. The officer said it appeared that the male was hiding something. The man then returned to the bar. This took two to four seconds in PC Walker’s estimation. He could not identify or describe the man. He could not see what was placed, but he thought it was a bag. PC Walker said he thought the man must have been trying to hide something from the police, who would have been entering the bar around the same time. He did not see anyone else on the patio, or anyone coming out onto the patio at the time. He thought he would have seen someone standing on the patio if anyone had been there, and he did not.

[35] PC Walker did not activate his body camera when he peered through the fence line. There is no videotape of the man placing an object on the patio as observed by the officer.

[36] The video from DC Balloutine’s body-worn camera shows that at 8:56:35 pm, PC Walker was standing by the corner of the fence peering through a gap in the slats of the fence. At 8:56:41 pm, PC Walker started walking to the left. He appeared to be talking to DC Balloutine. He testified that he told DC Balloutine that he was going to go inside the bar. He says he made the observation of the person on the patio about 30 to 45 seconds before this clip of video.

[37] At approximately 8:57:06 pm, PC Walker entered the Little Hut. He says this was about a minute after he saw the person on the patio.

[38] At 8:57:32 pm, PC Walker walked through the Little Hut, directly toward the back door to the patio. He exited through the back of the bar to the patio at 8:57:41 pm. At 8:57:50 pm, PC Walker located a black bag between the stone bench to the right of the door and the wall. He said this was where he had seen someone deposit it.

[39] PC Walker immediately opened the black bag. He found a gun inside.

[40] There were no personal effects in or around the bag or in the vicinity. In cross-examination, PC Walker acknowledged that he did not make any efforts to ascertain whose bag it was before opening it. His first thought was to open the bag to determine ownership. PC Walker maintained that he could not think of any mechanism other than opening the bag to ascertain ownership. He said it did not cross his mind at the time to go look at the surveillance video, nor to go into the bar and ask whether anyone owned the bag.

[41] PC Walker agreed in cross-examination that a person might leave their bag unattended at a bar and that someone might go out to have a smoke and accidentally leave their bag behind. But he maintained that it did not appear to him that that is what happened here. In PC Walker’s opinion, it appeared that the bag was placed there on purpose to abandon it. The bag was not left in the open. It was secreted between a bench and a wall.

[42] The bag contained only the gun. The defendant was searched later in the evening. He had $335 in cash, two packages of cigarettes, the key fob for his car, and a covid face mask in his pockets. In cross-examination, the defendant maintained that he did not think about whether to carry his personal effects in his pocket or in his bag. He said that replacing his cigarettes in his pocket instead of the bag when he was on the patio with Sawali was not a premeditated decision. The defendant disagreed that he moved his cigarettes and cash from the bag because he intended to leave the bag behind. He maintained that he did not intend to leave the bag because he knew there was a firearm in it.

[43] The gun was subsequently swabbed for DNA, and the samples were submitted to the Centre of Forensic Sciences (“CFS”) for analysis. Three DNA profiles were found on the gun. One profile was considered suitable for comparison. CFS analysts compared that DNA profile to a sample of DNA provided on consent by Damaine Sitladeen to determine whether he could be excluded as the source of the DNA found on the gun. They concluded that Mr. Sitladeen could not be excluded as the source of the DNA. CFS estimated that it was greater than one trillion times more likely that the DNA originated from Mr. Sitladeen than that it originated from an unknown person unrelated to him. There was no analysis of the other two DNA profiles on the gun, and no evidence of Mr. Williams’s DNA on the gun.

(2) Analysis

(a) Did Mr. Williams Have a Reasonable Expectation of Privacy in the Bag?

[44] I have come to the conclusion that the defendant’s bag was unattended but not abandoned. In the totality of the circumstances, he had a reasonable expectation of privacy in his bag and its contents.

[45] The defence position is that the defendant had a reasonable expectation of privacy in the contents of his bag. In the defence submission, the defendant did not seek to distance himself from his bag or hide it. Rather, he inadvertently left it behind on the patio bench. At that point, according to the defence, someone else hid the gun in the bag and stashed it away between the bench and the wall.

[46] The Crown submits that the defendant did not have a reasonable expectation of privacy in the contents of the bag. This is because, in the Crown’s argument, the defendant was in knowing possession of the gun. He hid the bag containing the gun in order to distance himself from it and avoid apprehension by the police. The Crown position is that, in so doing, the defendant abandoned the bag. He could not reasonably assert a continued privacy interest in its contents.

[47] To determine whether the defendant had a reasonable expectation of privacy in the bag and its contents, I turn to consider the totality of the circumstances, including (1) the subject matter of the search and the defendant’s interest in the subject matter of the search; (2) whether the defendant had a subjective expectation of privacy in the subject matter of the search; and (3) whether a subjective expectation of privacy was objectively reasonable in the totality of the circumstances, including whether the bag had been abandoned.

(i) The subject matter of the search and Mr. Williams’s interest in the subject matter of the search

[48] The subject matter of a search is to be framed in terms of the privacy of “the thing being searched and the potential impact of the search on the person being searched, not on the nature or identity of the concealed items”: Patrick, at para. 32.

[49] In this case, the search at issue was of the bag the defendant took into the Little Hut bar. A person’s bag, worn out into public - like briefcases, purses, suitcases, and backpacks - are often “the repository of much that is personal”: A.M., at para. 62. Bags or purses may contain identification, banking and other documents, medication, and all manner of other personal effects. In other words, a sealed and opaque personal bag containing concealed items may “be described as a bag of ‘information’” whose contents may reveal details of the owner’s activities and lifestyle: Patrick, at para. 30.

[50] Considered through the lens of the privacy of the thing searched and the potential impact of the search on the defendant, the subject matter of this search was not only the bag itself, but the information it did, or may have, contained. The defendant had a direct interest not only in the bag, but in the “informational content” of what it concealed: Patrick, at paras. 31 and 53.

(ii) Subjective expectation of privacy

[51] While the defendant did not explicitly testify that he expected the contents of his bag to remain private, subjective expectation of privacy is not a high hurdle. It does not necessarily require the explicit testimony of the Charter claimant. It may be presumed or inferred from the circumstances: Patrick, at para. 37; A.M., at para. 63.

[52] In A.M., at para. 63, Binnie J., for the majority of the Court, considered it obvious that teenagers expect the contents of their backpacks not to be open to the scrutiny of law enforcement without reason; see also A.M., at para. 157, per Bastarache J. dissenting but not on this point. The majority of the Court in A.M. inferred that a student had a subjective expectation of privacy in his unattended backpack. In my view, the same reasoning applies to the contents of an adult person’s personal purse or bag. People generally expect the informational content of their sealed and opaque personal bags to remain private. They do not expect their bags to be open to the scrutiny of law enforcement without reason. I infer that the defendant had a subjective expectation of privacy in his bag and its contents.

(iii) Was Mr. Williams’s expectation of privacy objectively reasonable?

[53] To determine whether the defendant’s subjective expectation was objectively reasonable, I must consider a number of factors, including the place where the search occurred, whether the subject matter of the search was in public view, and whether the subject matter of the search was abandoned: Tessling, at para. 32.

** (iii.1) The place where the search occurred **

[54] Although s. 8 protects people and not places, “the place where the search occurs greatly influences the reasonableness of the individual’s expectation of privacy”: Tessling, at para. 44.

[55] This was a search of the inside of the defendant’s bag, of its potential informational content. Bags people carry with them in public may contain much information that many of us do not wish to disclose to the public, much less to the police. People have a privacy interest in the contents of their sealed personal bags: Patrick, at para. 32. Framed in “broad and neutral terms” it is objectively reasonable to expect the contents of one’s bag to remain private: R. v. Buhay, 2003 SCC, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 19.

[56] That the bag contained contraband – a firearm – is no bar to a finding that the defendant had a reasonable expectation of privacy in his bag and its contents: “[t]he issue is not whether the appellant had a legitimate privacy interest in the concealment of [contraband], but whether people generally have a privacy interest in the concealed content of an opaque and sealed ‘bag of information.’ I believe that they do”: Patrick, at para. 32; see also A.M. at paras. 69-74. Identifying the compromised privacy interest does not “depend on whether, in the particular case, privacy shelters legal or illegal activity. The analysis turns on the privacy of the area or the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items”: R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 36.

[57] The objective reasonableness of the defendant’s expectation of privacy in the contents of his bag may be affected by where he went with the bag: “[p]eople do not shed their reasonable expectations of privacy in their person or in the concealed possessions they carry when they leave home, although those expectations may have to be modified depending on where they go, and what ‘place’ they find themselves in”: A.M., at para. 61.

[58] Where the defendant went in this case was the back patio of the Little Hut bar. That is where PC Walker found his bag and searched it. The Little Hut is a public bar. Anyone can enter it. The patio is fenced in, so it is not openly accessible to the parking lot that surrounds it. But the patio is accessible through the back door of the bar to anyone who enters the Little Hut.

[59] That the defendant’s bag was located on the patio of a publicly accessible place might lead to the conclusion that the defendant did not have an objectively reasonable expectation of privacy in his bag or its contents there. However, the Little Hut bar was the regular hangout of the defendant and his circle of friends. He had been there approximately 50 times before. He knew the owner and most patrons in that bar. He testified that he did not expect anyone there to steal his bag. Given that the patio was not accessible from the parking lot, it was unlikely that a stranger could access the bag, open it, interfere with it, or steal it without being seen by the defendant or one of his friends. The video reveals that the defendant and his friends were frequently back and forth between the bar and the patio throughout the evening, apparently going out there to smoke. It was objectively reasonable for the defendant to expect that the contents of his bag would remain private on the patio of the Little Hut in these circumstances.

[60] In addition, people leave bags unattended in bars all the time. As a matter of common sense and experience, people in bars routinely leave their bags or their coats unattended when they go the bathroom, to the bar to get food or a drink, to play pool, or to visit with friends in another part of the bar. They expect their personal possessions to remain private and be waiting for them when they return. As a matter of common sense and experience, people in bars forget their bag outside when they go out to smoke, returning to the bar without it. They do not lose their expectation of privacy in the contents of their bag because they forgot it and left it unattended at a bar. Viewed normatively, the expectation of privacy in the contents of one’s unattended bag in a bar is a reasonable one that society should support. People should be able to leave their bags unattended in bars without losing their expectation that the contents will remain private.

[61] That having been said, an unattended bag and/or its contents in a bar may be stolen. For that reason, an unattended bag may attract a somewhat diminished but still reasonable expectation of privacy. This concern does not obtain in the circumstances of this case where the defendant knew most of the patrons of the Little Hut, was very comfortable there, and did not expect that anyone would steal or interfere with his bag.

[62] Moreover, the loss of control that necessarily results from leaving a bag unattended in a bar may mean that there is a heightened risk of the bag being stolen by another person. This may result in a reduced expectation of privacy in the bag or its contents vis-à-vis other individuals. But this is not tantamount to a reduction or loss of expectation of privacy vis-à-vis the state: R. v. Duarte, 1990 150 (SCC), [1990] 1 S.C.R. 30, at pp. 48-49. Viewed normatively, an unattended bag in a bar that is not abandoned should attract a reasonable expectation of privacy vis-à-vis law enforcement. In my view, it does. Police should not be able to search the contents of bags in bars just on the basis that they are unattended.

** (iii.2) Whether the subject matter of the search was in public view **

[63] Courts assessing the totality of the circumstances have typically considered that an expectation of privacy is less likely to be objectively reasonable when the subject of the search is in public view: A.M., at para. 138; Tessling, at paras. 46-48.

[64] In A.M. and Patrick,[^1] the Supreme Court assessed the objective reasonableness of an expectation of privacy in information contained in closed and opaque bags. In both cases, the Court concluded that although the bags themselves were in plain view, this by itself did not defeat a reasonable expectation of privacy. This is because the appellant in each case did not assert a privacy interest in the outside of the bag. Rather, the appellants’ concern was with the “concealed contents of the bags, which were clearly not in public view”: Patrick, at para. 53; A.M., at para. 49. So too, in this case, the defendant’s privacy interest was in the concealed contents of his bag. Whether the bag itself was in public view is not of assistance in this case.

[65] In the event, the defendant’s bag was not in public view when it was found and searched by PC Walker. It was wedged between a bench and the wall of the patio. This raises the question of whether the bag was abandoned by the defendant.

** (iii.3) Whether the subject matter of the search had been abandoned **

[66] Abandonment is the heart of the s. 8 issue for my determination. If the defendant abandoned his bag, as the Crown contends, he did not have an objectively reasonable expectation of privacy in its contents. If he did not abandon it, as the defence contends, he had an objectively reasonable expectation of privacy in the contents of his unattended bag.

[67] Abandonment will be made out on the facts where a defendant acts in a manner that is inconsistent with the reasonable continued assertion of a privacy interest in the totality of the circumstances: Patrick, at paras. 20 and 25.

[68] In many cases where courts have found that the subject matter of the search was abandoned, the defendant intentionally divested themself of possession and control of the item such that they lost the ability to regulate who had access to it: Patrick, at para. 54; R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, at para. 46; R. v. Plummer, 2011 ONCA 350, 279 O.A.C. 359, at para. 42; R. v. Nesbeth, 2008 ONCA 579, 240 O.A.C. 71, at para. 22; R. v. Schirmer, 2020 BCSC 209, at paras. 85-89. Often, the defendant discarded the subject of the search while fleeing from police, or otherwise in an effort to distance themself and avoid being caught with it: Plummer, at para. 42; Nesbeth, at para. 22; Schirmer, at paras. 84-85.

[69] In cases where courts have not found abandonment, the facts supported a conclusion that even though the defendant was not in immediate physical possession of the subject matter of the search, they had not divested themselves of it, they had maintained control of it or its location, could regulate access to it, or concealed it rather than discarding it: Buhay, at para. 21; A.M., at para. 158, per Bastarache J. dissenting but not on this point; R. v. Ansah, 2020 ONCJ 72, at paras. 37-40, 48.

[70] In this case, after careful consideration of all the evidence, I am satisfied that the defendant did not abandon his bag. I find that he did not intend to abandon his proprietary interest in the bag or its contents, and that he had a reasonable continuing privacy interest in them: Patrick, at para. 54. Mr. Williams “has acted in relation to the subject matter of his privacy claim in such a manner as to lead a reasonable and independent observer to conclude that his continued assertion of a privacy interest” is reasonable in the totality of the circumstances: Patrick, at para. 25. In other words, I am satisfied, on the facts of the case, that Mr. Williams did not intentionally divest himself of possession and control of his bag, discard it or divest himself of it in an effort to avoid being caught with it. I accept that he accidentally forgot his bag on the patio bench, and was not the person PC Walker saw placing an item.

[71] Mr. Williams was on the patio from 8:53:07 pm until he re-entered the bar at 8:53:31 pm without the black bag.

[72] PC Walker was captured on DC Balloutine’s body-worn camera peering through the fence line of the Little Hut at 8:56:35 pm. He estimated that he had observed the man placing an item on the patio approximately 35 to 40 seconds before this.

[73] PC Walker entered the Little Hut at 8:57:06 pm. He said this was approximately one minute after he had seen the man placing an item on the patio.

[74] I conclude that PC Walker made his observation of a man placing an item on the patio between 8:55:55 and 8:56:06 pm. This was approximately two and a half minutes after Mr. Williams re-entered the bar from the patio. As of 8:53:44 pm, Mr. Williams was seated at the bar inside the Little Hut, where, as I will discuss further below, he likely remained until his arrest. When PC Walker observed someone secreting the bag, the defendant had already been seated at the bar for somewhere between two minutes and 11 seconds and two minutes and 22 seconds.

[75] As a result, Mr. Williams could not have been the man PC Walker observed secreting an item on the patio at some point between 8:55:55 and 8:56:06 pm.

[76] PC Walker would have to have under-estimated how long he stood at the fence after observing the man placing the item on the patio by approximately two and a half minutes for that man to have been Mr. Williams. He would have had to have been standing at the fence for three minutes before DC Balloutine’s body camera recorded him peering through the fence to have observed Mr. Williams. PC Walker estimated that he had been standing at the fence for 35 or 40 seconds when caught on DC Balloutine’s camera. PC Walker was an experienced police officer, who suspected that he had witnessed someone hiding evidence of a crime. He would have known that timing could become an issue. In these circumstances, even if PC Walker had under-estimated how long he spent standing at the fence, it is very unlikely that he underestimated by two full minutes. It also very unlikely that he stood at the fence watching for two or more minutes after observing what he believed was someone secreting an item that he suspected they were trying to hide from police. I am satisfied that the man observed secreting an item by PC Walker could not have been Mr. Williams.

[77] I am bolstered in this conclusion by the fact that PC Walker said he only saw the one man on the patio at the time of his observation, and that he would have been able to see others if they had been there. But the video reveals that Mr. Williams was never alone on the patio. Mr. Sitladeen had exited to the patio immediately behind Mr. Williams at 8:53:07 pm and returned to the bar very shortly after Mr. Williams. Mr. Sitladeen was with Mr. Williams the entire time he was on the patio. Sawali was also on the patio for all but the last ten seconds Mr. Williams was on the patio. He had exited to the patio before Mr. Williams, at 8:52:40 pm, and returned to the bar at 8:53:21 pm.

[78] Moreover, Mr. Williams was out on the patio for just under 25 seconds, from approximately 8:53:07 until 8:53:31 pm. The man PC Walker observed came out to the patio, placed the item, and returned to the bar, all in two to four seconds. PC Walker did not see a man come out to the patio and spend almost 25 seconds there, at some point during which time he placed the item. This too supports my conclusion that the man observed by PC Walker was not Mr. Williams.

[79] A number of people went out to the patio and re-entered the bar, some of them a number of times, between 8:53:31 pm when the defendant re-entered the bar and 8:55:39 pm when the surveillance video cuts out. There is no video record of who exited to the patio or returned from it in the 51 seconds between 8:55:39 and 8:56:30 pm, which includes the period in which PC Walker made his observation. But video evidence strongly suggests that Mr. Williams was seated at the bar throughout this time.

[80] Between 8:55:54 and 8:56:24 pm, PC Benduski’s body-worn camera shows Mr Williams in the distance, seated at the bar where he had gone to sit at 8:53:44 pm. One of the Little Hut surveillance videos shows that Mr Williams was still seated at the bar, in the same place, at 8:56:54 pm. That is to say, videos place Mr. Williams seated at the bar as of 8:53:44 pm, and in the same spot, from 8:55:54 to 8:56:24 pm, and at 8:56:54 pm. He was still in the same spot at the bar during the later parole investigation, and when he was later arrested. This is evidence that Mr. Williams was seated at the bar before, during, and after the gap in the surveillance video of the exit to the patio. There are only 21 seconds of the 51 second gap in the video of the exit to the patio in which Mr. Williams is not shown seated at the bar in other videos. This is not to say that there are videos in which Mr. Williams is shown as being away from the bar. Rather, there is simply no video evidence depicting Mr. Williams’s whereabouts during those 21 seconds.

[81] Given that videos do show him seated in the same place at the bar before, after, and during much of the gap in the video, I think it is highly likely that Mr. Williams sat at the bar at 8:53:44 pm, and remained there throughout, until his arrest, and after. In my view, it is unlikely in the extreme that Mr. Williams got up and went out to the patio to hide the bag during the gap in the video of the exit to the patio, during which time PC Walker saw him hiding the bag. Whoever PC Walker saw hiding the black bag between 8:55:55 and 8:56:06 pm did so while Mr. Williams was almost certainly seated at the bar.

[82] The Crown has argued that Mr. Williams abandoned the bag because he knew it contained a gun – that it was his gun – and he wanted to distance himself from that gun. Mr. Williams testified that he did not have a gun in his bag, and that someone else must have placed the gun in the bag and hidden it between the bench and the wall as observed by PC Walker, after the defendant forgot the bag on the bench. I accept Mr. Williams’s evidence.

[83] Mr. Williams testified before me in a forthright and straightforward manner. In my view, he was unshaken in cross-examination. The Crown argued that there was an important inconsistency in Mr. Williams’s evidence, from which I should conclude that he was not a credible witness. This alleged inconsistency requires some further background.

[84] Mr. Williams and Mr. Sitladeen were originally jointly charged. This trial proceeded jointly against both of them. The Crown stayed the charges against Mr. Sitladeen before the end of the trial. When Mr. Williams testified, Mr. Sitladeen was still a co-defendant. In his evidence in-chief, Mr. Williams testified that when he was at his car with Mr. Sitladeen, he decided to return to the Little Hut to warn Sawali that police may be approaching. He did not mention in-chief that he had any discussion with Mr. Sitladeen about returning to the bar. In cross-examination by counsel for Mr. Sitladeen, Mr. Williams was asked whether he made a plan with Mr. Sitladeen to return to the Little Hut. Mr. Williams agreed that he had. In cross-examination by the Crown, Mr. Williams testified that he remembered telling Mr. Sitladeen that he thought the two black vans were police. He said he thought he must have said that he was going back inside the bar. Mr. Williams did not recall his exact words to Mr. Sitladeen, nor what Mr. Sitladeen said in response if anything. Mr. Williams agreed that he had an internal thought to help Sawali, which may not have been vocalized. But both men then walked back into the Little Hut.

[85] The Crown challenged Mr. Williams as to how he could have made a plan with Mr. Sitladeen if Mr. Sitladeen did not say anything. Mr. Williams maintained that he had said that he thought the vans were police, and that he was going back into the bar, or that he had said “let’s go back into the bar.” He explained that, having said words to that effect, he considered there to have been a joint plan because Mr. Sitladeen went back into the bar with him.

[86] The Crown argued that the evolution of Mr. Williams’s evidence in relation to whether he had made a joint plan with Mr. Sitladeen evidenced dishonesty on the defendant’s part. He argued that Mr. Williams lied to assist Mr. Sitladeen: if there was a joint plan to return to the bar, Mr. Sitladeen would have had a reason to return to the bar other than to hide the gun. The Crown further argued that this dishonesty on Mr. Williams’s part was indicative of a general desire to mislead the court and an overall lack of credibility.

[87] I do not consider Mr. Williams’s evidence to have been inconsistent in the way asserted by the Crown. Mr Williams made clear, when challenged about this evidence, that he considered there to have been a joint plan because after he said he said he thought the vans were police and that he was going back into the bar, both he and Mr. Sitladeen went back to the Little Hut together. He acknowledged that he did not have a precise memory of what words were exchanged between him and Mr. Sitladeen. These events had taken place two and a half years earlier. Some forgetting of precise words used would be a normal effect of the passage of time on memory, without indicating deceptiveness. It would have been reasonable for Mr. Williams to assume that, having said something to the effect that he thought police might be heading to the bar and that he was going back in or “let’s go back in,” that Mr. Sitladeen’s return to the bar with him indicated a joint plan. Even though he did not remember what Mr. Sitladeen said in response, if anything.

[88] This testimony and its evolution do not negatively impact on Mr. Williams’s credibility.

[89] Mr. Williams also candidly testified to some facts that did not cast him in a favourable light, or that were unhelpful to him. For example, Mr. Williams acknowledged that he returned to the Little Hut to warn Sawali because he knew that Sawali was in breach of court-ordered conditions to stay out of that bar. This was not a law-abiding purpose, nor one that demonstrated respect for court orders. He also did not endeavour to concoct an innocent explanation for why the one or two paper money bills that were visible in the front pouch of his bag before he left the Little Hut were no longer there when the bag was seized. His evidence was that he could not remember what had happened to the bills. Mr. Williams’s candour, even when dealing with things that were unhelpful to him, enhanced his credibility.

[90] In assessing Mr. Williams’s testimony, and his credibility, I am influenced by the video evidence that is confirmatory of some of the details of why he said he was on the patio and why he said he forgot his bag there.

[91] Mr. Williams said he had gone back into the Little Hut and out onto the patio to warn his friend Sawali that he thought police were about to enter the bar. He said Sawali had court-ordered conditions that prohibited him from being in the Little Hut. Video evidence is confirmatory of some of the defendant’s evidence on point. It shows that the defendant returned to the bar after having left, and then exited to the patio at 8:53:07 pm. At 8:53:21 pm, Sawali re-entered the bar from the patio, walking quickly, tapped his girlfriend as if to tell her it was time to leave immediately, and exited the bar with his girlfriend following him. The video supports the defendant’s evidence that he warned Sawali which, in turn, provides some independent confirmation of why he says he was on the patio. I consider it supportive of the defendant’s evidence that he was not on the patio to hide the gun.

[92] Mr. Williams said that while he was on the patio, he saw his friend Javonte Hylton make a movement that alerted him to something happening inside the bar. This, he said, distracted him because he assumed that Mr. Hylton was reacting to the police entering the bar. Mr. Williams said that this caused him to get up and go back into the bar, forgetting his bag on the bench. Video evidence is confirmatory of some of the defendant’s evidence on point. At 8:53:27 pm, Mr. Hylton is seen on the video walking around the pool table, facing toward the door to the patio, and making a gesture with his hands as if he was asking what was going on. The bench where the defendant says he was seated is immediately to the right of the door. Mr. Williams would have been able to see Mr. Hylton from there. Seconds later, at 8:53:31 pm, the video shows Mr. Williams re-entering the bar without his bag. The video supports the defendant’s evidence that a gesture of Mr. Hylton’s alerted him to something happening in the bar. This, in turn, provides some independent confirmation of his evidence that he was distracted which caused him to forget his bag when he came back inside.

[93] In addition to the video evidence that is confirmatory of elements of the defendant’s story that he forgot his bag on the patio, another factor influences my thinking about his credibility and whether he was telling the truth when he said he did not possess or abandon the gun.

[94] That factor is that Mr. Williams had already left the bar when he saw what he recognized as unmarked police vehicles heading toward the Little Hut. He was at his car with Mr. Sitladeen, about to drive home. If his intention was to hide his bag to distance himself from it and avoid being caught with it by police, it would not have made sense for Mr. Williams to go back into the Little Hut to hide the bag. Instead, Mr. Williams would have driven away from police to his home, or anywhere else other than where he expected the police to attend. Or he would have hidden his bag in the car. If Mr. Williams needed or wanted to escape police, he had already made good that escape. He would not have returned to the bar to hide his bag in order to do so. As a matter of common sense and experience, Mr. Williams would not have put himself directly in harm’s way in order to avoid that harm. I find this factor supports Mr. Williams’s evidence that he did not abandon his bag on the patio, but rather that forgot it there.

[95] The Crown has argued that the absence of any personal effects in the black bag when it was seized, and the presence of many personal effects in Mr. Williams’s pockets, tells in favour of Mr. Williams having been in possession of the gun, and of abandonment. In particular, the Crown submits that the absence of the one or two paper money bills that are visible in the front pocket of the bag earlier in the evening, suggests that Mr. Williams emptied the bag because he knew he was going to abandon it. Mr. Williams testified that he had had a package of cigarettes in the front pouch of the bag earlier in the evening. He also said, before he was challenged about the bills in cross-examination, that he had had one or two bills in there. He explained that when he was on the patio with Sawali, he took the cigarettes out of the bag and, without thinking, replaced them in his pocket. He said he could not remember what had happened to the two bills.

[96] I agree with the Crown that the absence of personal effects, especially the one or two bills, from the bag upon seizure is suspicious. However, I consider that Mr. Williams, who testified that he had very recently received the black bag as a gift, might reasonably have been in the habit of carrying personal effects in his pockets instead of in the bag. And that while on the patio with Sawali, contemplating the arrival of police, he might reasonably have been distracted and automatically resorted to putting his cigarettes back into his pocket. I also consider it believable that Mr. Williams did not remember what happened to the one or two bills that had been in his bag over two years earlier, on a night in which he was detained and then arrested by police. As noted, Mr. Williams did not concoct an explanation for why the bills were no longer in his bag when it was seized with a view to supporting his evidence that he did not hide or abandon it. He simply acknowledged that he did not know what had happened to the bills. In my view, this lends some support to his credibility on this issue.

[97] Notwithstanding the suspicious absence of personal effects and the paper bills in the bag, I have concluded that Mr. Williams did not abandon his bag. Most important and central to this conclusion is the independent video evidence combined with the evidence of PC Walker that confirms that Mr. Williams could not have been the person PC Walker saw secreting an item on the patio. Weighed against this independent and reliable evidence, the suspicious absence of personal effects is not determinative. The independent and reliable evidence, combined with Mr. Williams’s credible and unshaken testimony, and all the circumstances of the case satisfy me that Mr. Williams was not in possession of the gun and did not abandon his bag.

[98] Overall, I am satisfied that the defendant did not abandon his bag but forgot it. On all the evidence in the case, and in the totality of the circumstances, the defendant had a reasonable expectation of privacy in the bag.

(b) Was the Search Reasonable?

[99] A warrantless search is presumptively unreasonable absent exigent circumstances: Tessling, at para. 33. The onus rests on the Crown to demonstrate on a balance of probabilities that a warrantless search was reasonable: Buhay, at para. 32.

[100] In my view, the presumption that the warrantless search was unreasonable has not been disproven by the Crown in the circumstances of this case. There were no exigent circumstances here. Once PC Walker found the bag, its contents could not pose a risk to the safety of the police, bar patrons or staff, or passersby. There was equally no risk of loss, removal, destruction, or disappearance of any evidence in the bag if the search were delayed long enough for further investigation and/or to obtain a search warrant: R. v. Grant, 1993 68 (SCC), [1993] 3 S.C.R. 223, at p. 243. There was no statutory or common law authorizing this warrantless search.

(3) Conclusion with Respect to Section 8 Application

[101] The defendant had a reasonable expectation of privacy in the content of his bag. The warrantless search of the bag was unreasonable. The defendant’s right to be free from unreasonable search and seizure was violated.

III. THE SECTION 9 APPLICATION AND RELATED SECTIONS 8, 10(a), and 10(b) APPLICATIONS

A. Overview of Applicable Legal Principles

[102] Police may investigatively detain an individual where, in the totality of the circumstances, there are objectively reasonable grounds to suspect that the person is connected to a particular offence and the detention is necessary: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 34, 45. Reasonable grounds to suspect is a lower standard than reasonable grounds to believe. The former standard engages reasonable possibility, where as the latter engages a reasonable probability: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 27; R. v. Ramelson, 2022 SCC 44, 420 C.C.C. (3d) 151, at para. 53.

[103] A detention for investigative purposes is subject to scrutiny under s. 9 of the Charter. Section 9 is meant to “protect individual liberty against unjustified state interference. Its protections limit the state’s ability to impose intimidating and coercive pressure on citizens without adequate justification”: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 25.

[104] An investigative detention arising from an officer’s reasonable grounds to suspect based on the totality of the circumstances that a person was involved in an offence will not be arbitrary within the meaning of s. 9: Mann, at para. 20. The determination of whether an investigative detention is lawful, not arbitrary, will focus on “the nature of the situation, including the seriousness of the offence, the information known to police about the suspect or the crime, and the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope”: R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at para. 31.

[105] A person who has been investigatively detained may lawfully be searched incident to investigative detention. However, the power of search incident to investigative detention is more limited than the power to search incident to arrest. It is limited to pat down searches that are necessary to address reasonable safety concerns: Mann, at para. 40; R. v. Griffith, 2022 ONSC 3558, at para. 19.

[106] Upon detention, the right to counsel, and the right to be informed of that right, under s. 10(b) of the Charter, arise immediately: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 2, 37-42. This is because on arrest, detainees are vulnerable to coercion and the exercise of power by the state. The right to counsel exists to “assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination”: Suberu, at para. 40. The police duty to advise a detainee of the right to retain and instruct counsel, and to facilitate that right upon detention, may be delayed for officer or public safety concerns, or subject to any limitations prescribed by law and justified under s. 1 of the Charter: Suberu, at paras. 42, 45.

[107] Investigative detention also engages the right to be advised promptly of the reasons for the detention under s. 10(a) of the Charter: Mann, at para. 21. The primary purpose of this right is to inform an individual of why they are being detained; a person is not obliged to submit to detention if they do not know the reason for it: R. v. Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869, at pp. 886-887; R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at para. 124. A secondary purpose of the s. 10(a) right is to advise a detainee of the extent of their jeopardy so that they can exercise their s. 10(b) right to counsel in a meaningful way: R. v. Nguyen, 2008 ONCA 49, 232 O.A.C. 289, at para. 20. There will be no breach of the right to be informed of the reasons for detention if, in the circumstances, the detainee would know why they are being detained: Nguyen, at paras. 12 and 16.

[108] Not every interaction with police amounts to a detention, “even when the person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police”: Suberu, at para. 23; Mann, at para. 19; R. v. MacMillan, 2013 ONCA 109, 114 O.R. (3d) 506, at para. 36. Where police believe that a crime has recently been committed, they may engage in preliminary questioning without giving rise to a detention within the meaning of ss. 9 and 10 of the Charter: Suberu, at paras. 3, 28; Le, at para. 27.

[109] An individual confronted by state authority is detained, as opposed to delayed, when they no longer have the option to choose to walk away: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 25. This arises when a person is physically or psychologically restrained by police, when they submit or acquiesce in their deprivation of liberty under a reasonable apprehension that there is no choice to do otherwise: Grant (2009), at paras. 25, 28. A psychological detention can arise in two ways. The first is where a person is legally required to comply with a direction or demand from the police. The second is where a person is not under a legal obligation to comply with police direction or demand, but a reasonable person in the subject’s position would feel so obligated and conclude that he or she was not free to go: Grant (2009), at paras. 30, 31, cited in Le, at para. 25.

[110] To determine whether, or when, an interaction between police and an individual crosses over from being a delay by police to being a detention, a judge must consider three non-exhaustive factors against the backdrop of all the circumstances: Grant (2009), at paras. 31 and 44:

In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[111] An alleged violation of the right not to be arbitrarily detained under s. 9 of the Charter proceeds in two stages. In the first stage, the inquiry is into whether the subject was detained. If it is determined that they were detained, the second stage inquiry is whether the detention was arbitrary: Le, at para. 29.

B. Application to this Case

(1) Evidence

[112] Detectives Fynes, Saffu, and Benduski entered the Little Hut through the front door at approximately 8:53:40 pm on July 31, 2021. At 8:53:46 pm, Det. Fynes was investigating a bar patron, Sakariya Farrah, for a suspected breach of a bail house arrest condition. At 8:55:31 pm, the defendant re-entered the bar from the patio without his cross-body bag, as previously described. He sat down at the bar. He was seated a few feet toward the back of the bar from where police were questioning Mr. Farrah. At 8:57:07 pm, Mr. Farrah was handcuffed.

[113] The defendant testified that when he stepped back into the bar, he saw Det Fynes walk in. He said police “rushed” the bar “pretty quick.” He did not know why they were there. He then saw police officers talking to Mr. Farrah and place him in handcuffs.

[114] PC Walker entered through the front door of the Little Hut at approximately 8:57:06 pm and exited through the back door to the patio at 8:57:41 pm, as noted. He re-entered the bar from the patio with the bag containing the gun at 8:57:56 pm. At 8:57:59 pm, PC Walker walked back into the bar, holding up the black bag. At 8:58:10 pm, still holding up the bag, PC Walker said, “anybody own this?” He then told Det. Fynes he had found a gun, and she peered into the bag with a flashlight. PC Walker said “nobody leaves.” He testified that this comment was made to Det. Benduski, not to everyone in the bar. He said did not say it loudly, and there was loud music playing in the bar at the time. Det. Fynes did not hear PC Walker say “nobody leaves.”

[115] The defendant saw PC Walker show the bag to Det. Fynes. He saw her peer inside with a flashlight. The defendant could tell that something was going on with his bag.

[116] PC Walker said that none of the bar patrons were “eligible to leave” from the time he found the gun. In his view, there was a reasonable possibility that the person who had been in possession of the gun was still in the bar. Police were in the initial stages of the gun investigation at that point. PC Walker testified that no one was permitted to leave the bar until the investigation into the firearm was completed. He said that if anyone tried to leave the bar, they would have been investigatively detained and prevented from leaving, and probably would have been advised of their right to counsel. But no one tried to leave the bar. PC Walker agreed that he did not tell anyone that they were detained, or why, and that he did not give anyone their right to counsel. In PC Walker’s view, no one was detained at the time. People were moving about the bar, drinking, and talking.

[117] Det. Fynes also testified that from the time the gun was found, no one in the bar was free to leave. She said if any of the bar patrons had paid their bill and tried to leave, it would have escalated. She would not have let anyone leave. She would have given rights to counsel if anyone had tried. Det. Fynes testified that she did not want to do a mass investigative detention. She knew there was a video available, and expected that it would be a brief period in which people were not free to leave. She felt she did not need to give rights to counsel because the police weren’t going to be asking any questions. She said it would not have been feasible to separate everyone and call their lawyers. Det. Fynes maintained that she did not have enough police power on the ground in the bar to give everyone their rights to counsel given all of the unfolding investigations at the time – the firearm investigation and the bail breach investigation into Mr. Farrah. Det. Fynes knew that she had to give rights to counsel when she investigatively detains someone.

[118] PC Walker said he understood the law to be that he should not engage in questioning anyone about the gun without informing them of the reason. He maintained that he knew no one would answer his question “anybody own this?” to claim ownership of the bag. But he was hoping to get an answer, because it would have helped the investigation. He did not think about what would have happened if someone responded.

[119] At 8:58:33 pm, Det. Fynes was talking to the defendant and another man, Shamar Lennon, at the bar. Det. Fynes knew the defendant from working in the division, patrolling hot zones, and she had executed an arrest warrant at his home in the past. She knew that the defendant had very recently been released on parole. The defendant said he had known Det. Fynes for a long time. He was “kind of comfortable” with her. But everything happening around him made him uneasy. He did not know why police came into the bar so forcefully or why there were there.

[120] At 8:58:40 pm, PC Walker said “someone just threw it out there, so hold these guys.” PC Walker was not sure who he said this to. He thought maybe it was directed at Det. Fynes because she was the police officer closest to him at the time. Det. Fynes testified that she did not hear PC Walker say this at the time. She was talking to the defendant at the bar with her back to PC Walker.

[121] PC Walker approached Det. Saffu at 8:58:40 pm, held up the black bag, and told Det. Saffu he had found a gun. Det. Saffu looked inside and saw the gun. PC Walker said “hold these guys.” Det. Saffu said the music in the bar was loud, so PC Walker was talking loudly. The defendant testified that he heard PC Walker tell Det. Saffu to “hold these guys.”

[122] Det. Saffu understood PC Walker to be saying that he should place the men he was talking to under investigative detention. Det. Saffu told Mr. Sitladeen, Mr. Lennon and Mr. Hylton that a firearm had been found, and that they were not free to leave until police figured out who had “dumped” the firearm. He did a pat down search of these men. He thought he cautioned them, but did not think he gave them their rights to counsel. Det. Saffu explained that it was a fluid and hectic situation. He said people wanted to leave the bar and could not be allowed to do so.

[123] At approximately 8:58:54 pm, PC Walker called out to DC Balloutine and PC Sharma on the police radio, saying “get in here right now.” There was urgency in his voice. Det. Balloutine testified that he ran into the Little Hut.

[124] At approximately 8:59:53 pm, Det. Fynes asked PC Walker to run the defendant in the police computer system from his connected cellphone. This was in relation to the defendant’s parole, according to Det. Fynes, not in relation to the firearm.

[125] At 9:01:10 pm, PC Walker is heard on the video saying “no one’s going outside right now.” It is not clear to whom the comment was addressed.

[126] At approximately 9:02 pm, Det. Fynes asked the defendant to surrender his parole papers and identification, which he did. She asked him about his ankle monitor. The defendant lifted up his pant leg to reveal the ankle bracelet. Det. Fynes reviewed the defendant’s parole conditions with him. She testified that it seemed strange to her that the defendant, who had recently been released on parole, could be out at bar drinking alcohol. She asked him whether he was allowed to be there drinking. The defendant said he was. Det. Fynes said she wanted to check the defendant’s parole conditions to confirm that he was not in breach. She did not consider the defendant detained at this point. She agreed that the defendant was not free to leave during the parole investigation. Even once the parole investigation was over, Det. Fynes said, the defendant was not free to leave because of the ongoing firearm investigation. She did not ask him any questions about the firearm.

[127] The defendant said he did not feel he could refuse to answer Det. Fynes’s questions, nor get up and walk away. He was on parole and felt he had to cooperate. Throughout the time police were in the Little Hut, the defendant never felt he was free to leave. There was so much going on in the bar. He was unsure as to what police were investigating. He could see Sakariya Farrah at the end of the bar in handcuffs.

[128] PC Walker conducted a pat down search the defendant at approximately 9:06:52 pm. He then asked the defendant to empty his pockets onto the bar. PC Walker said he had to conduct a pat down search because there was no other way for him to verify whether the defendant was complying with the no weapons condition of his parole. He acknowledged that he did not have a suspicion that the defendant was in possession of a weapon at the time. PC Walker testified that he did not investigatively detain the defendant before conducting the search, but merely delayed him. He said he would not normally give the right to counsel to a person he knew was on bail or parole with a no weapons condition before conducting a pat down search.

[129] At 9:08:36 pm, Det. Fynes was dealing with Mr. Farrah and his arrest for fail to comply with a recognizance. Around this time, PC Walker left the defendant and went back out to the patio. He testified that the parole investigation was over when he left to search the patio. The defendant remained at the bar. To PC Walker’s knowledge, no one had told the defendant he could not leave.

[130] The defendant said he did not feel he could leave the bar after he was patted down by PC Walker. He felt it was a hostile environment. Police were questioning people. They had arrested Mr. Farrah. The defendant felt that if he tried to walk out, police would stop him at the door. As a young Black man growing up in Rexdale, the defendant said, he had had a lot of police interactions. His neighbourhood was heavily policed. The defendant said he had been stopped by police many times. Given his experiences growing up as a Black man, the defendant said he would rather avoid interactions with police, even if he was not doing anything wrong. His past experiences with police had taught the defendant that if he walked or ran away from police, he was likely to be stopped by them. He did not make any attempt to leave.

[131] DC Balloutine testified that at 9:11:58 pm, he and Det. Saffu went to watch the Little Hut surveillance videos. Their purpose was to investigate who had been in possession of the black bag containing the gun prior to police arrival.

[132] At 9:12:42 pm, Det. Fynes announced to everyone in the bar that they were being detained for a firearms investigation. At 9:12:55 pm, either Det. Fynes or DC Benduski said “close that door” or “lock that door.” Det. Fynes testified that at that point, she had just finished dealing with her investigation of Mr. Farrah. She did not understand the delay in reviewing the surveillance video. She wanted to communicate to the bar patrons that they were not free to leave because police were investigating a firearm.

[133] Det. Fynes did not tell the bar patrons that they had a right to counsel. She said she knew it would be a minimal detention because officers would soon be able to review the video. It would not have been reasonably practical, in Det. Fynes’ explanation, to give rights to counsel to everyone in the bar. It would have taken a long time to facilitate access to counsel for everyone, and this would have extended the investigation considerably.

[134] At 9:19:03 pm, Det. Balloutine emerged from the video room at the Little Hut. He and Det. Saffu had reviewed the surveillance videos. They concluded that the defendant had been in possession of the black bag earlier in the evening. At 9:19:30 pm, Det. Balloutine arrested the defendant for unauthorized possession of a firearm. Det. Fynes announced that everyone else was free to go.

(2) Analysis

(a) When was Mr. Williams Detained?

[135] It is common ground that at some point on the night of July 31, 2021, the defendant was detained by police. The Crown position is that he was detained briefly during the parole investigation, and then again when police investigatively detained everyone in the Little Hut. The defence position is that the defendant was detained, alongside everyone else in the Little Hut as soon as police entered the bar, or no later than when the gun was found.

[136] In order to determine whether the defendant was arbitrarily detained, I must first determine when he was detained.

[137] Considering all the circumstances of the situation and the three non-exhaustive factors from Grant, I have come to the conclusion that the defendant and all of the other patrons in the Little Hut bar were detained from the time the gun was found. The defendant was detained again when he was searched to investigate him in relation to his parole.

(i) Circumstances giving rise to the encounter as they would reasonably be perceived

[138] The circumstances giving rise to the encounter between the officers and the patrons of the Little Hut bar support a finding of detention from the time PC Walker found the gun.

[139] Three police officers entered the bar looking for Mr. Darling, who was a wanted person, and who they had reason to believe was there. They were entitled to do so.

[140] Within a very short time of their entry into the bar, the officers were questioning Mr. Farrah in relation to a different matter. They arrested him for failing to comply with recognizance and handcuffed him in plain sight of the of the other bar patrons. They were entitled to investigate Mr. Farrah for a suspected offence that presented itself to them.

[141] The surveillance videos reveal that while Det. Saffu and DC Benduski remained with Mr. Farrah at the bar, Det. Fynes walked through the bar to look in the bathroom. She interacted with Mr. Sitladeen in front of it. She walked back into the bar area shining a flashlight. Shortly after this, Det. Saffu walked through the bar and exited to the patio. He re-entered the bar and walked back through the bar. All the officers interacted with bar patrons.

[142] Approximately four minutes after officers first entered the Little Hut, a fourth officer, PC Walker, entered the bar. He walked directly out to the patio and returned in under a minute holding the black bag. He asked if anyone owned the bag, showed its contents to Det. Fynes, and said “nobody leaves.” Approximately 30 seconds later, PC Walker said “someone threw it out there, so hold these guys”; and a further eight seconds later, he said to Det. Saffu, “hold these guys.” The defendant heard PC Walker say this. Det. Saffu detained the three men he was talking to, telling them that they were not free to leave. He performed pat down searches of them in plain view of everyone in the bar. Approximately six seconds after telling Det Saffu to “hold these guys,” PC Walker shouted to the two officers remaining outside to “get in here right now.” DC Balloutine and PC Sharma immediately and quickly entered the Little Hut. There were now six police officers, and approximately eight or nine patrons, in the bar.

[143] From the time the gun was found, according to both Det. Fynes and PC Walker, no one was free to leave. The police didn’t generally announce this until approximately 15 minutes after the gun was found, but they would have prevented anyone who tried to leave from doing so from the time when the gun was found.

[144] The police officers initially had a specific investigative purpose for attending at the Little Hut bar: to look for a particular person for whom there was an outstanding arrest warrant. Very shortly after they arrived on scene, they developed another specific investigative purpose: to determine whether Mr. Farrah was in beach of his bail. The officers’ movements within the bar up until the gun was found can be understood as furthering one or the other of these investigative purposes.

[145] However, the officers’ subjective investigative purposes are less relevant to a determination of whether a detention has occurred than they are to whether a detention was arbitrary. This is because “when determining whether a detention has occurred, the circumstances giving rise to the encounter are assessed based on how they would reasonably be perceived. The subjective purposes of the police are less relevant in this analysis because a reasonable person in the shoes of the putative detainee would not have known why these police officers were entering the property”: Le, at para. 37.

[146] In this case, the police did not ever say why they were entering the Little Hut. In his testimony, the defendant repeatedly referred to the fact that he did not know why police were there. He repeatedly said that the police entered quickly and “forcefully,” and that this made him uneasy. Later in the sequence of events, shortly after his arrest, the defendant was caught on video asking Det. Balloutine what the reason for this “raid” was, and whether it was a “raid.” The defendant apparently never knew, on the night of July 31, 2021, why police were in the Little Hut.

[147] On the facts of this case, there was no obvious case for police presence in the Little Hut, and police never expressly communicated to bar patrons why they were there. They did not say that they were there to look for Mr. Darling. The police entry into the Little Hut, and their actions once inside, could reasonably have been perceived to be some kind of raid. Police could reasonably have appeared to be generally looking for evidence of whatever they might find.

[148] That this would have been a reasonable perception of why police were there is supported on the facts. Police entered the bar at a time when nothing in particular of concern appeared to be happening there. There were no bar fights or other obvious problems. Police were not called to the bar to maintain order, provide general assistance or assistance to the bar patrons, respond to unfolding events, or in response to a complaint from a third party: Le, at para. 35. And yet police entered the Little Hut in numbers, quickly, almost immediately began questioning Mr. Farrah, very quickly arrested and handcuffed him, and continued to look around in the bar and interact with patrons.

[149] While the police entry into the Little Hut was without obvious cause and would reasonably have been perceived to be a general raid, in my view, the actual detention of bar patrons did not begin until the gun was found. Until that point, police did not do anything that would have communicated that they were assuming physical or psychological control over the men in the bar (aside, of course, from Mr. Farrah). There was no evidence of pointed or precise questioning of anyone other than Mr. Farrah in this period. No one was required to show their identification. There was no evidence that pointed to any of the men in particular being the object of police attention: Le, at para. 40. Bar patrons’ movements were not restricted. Sawali left the bar just as Dets. Fynes, Saffu, and Benduski were entering. He was not prevented from leaving. The defendant knew that Sawali had been able to leave the bar. A reasonable observer would have perceived that they were free to leave the bar at that time.

[150] In the period of approximately two minutes between when police first entered the bar and when the surveillance video of the door to the patio cut out, numerous bar patrons exited to the patio and returned from it. They were neither deterred nor prevented from exiting to the patio and returning from it at will. Although the defendant testified that he was uneasy as a result of the force of the police entry, and as a result of not knowing why they were there, a reasonable observer would not conclude that the defendant was detained from the moment of police entry.

[151] However, this changed once PC Walker found the gun. He re-entered the bar holding up the black bag. He asked whether anyone owned the bag. He told Det. Fynes what he had found, and she peered into the bag with a flashlight. This was seen, though not heard, by the defendant. PC Walker proceeded to ask patrons of the bar generally about whether anyone owned the bag; and four times to say words that communicated that no one could leave and to direct his fellow officers to hold everyone in the bar. The bar was noisy with loud music playing. Bar patrons, including the defendant, may or may not have heard PC Walker say the words that communicated their detention. But the defendant testified that he did hear PC Walker say “hold these guys” to Det. Saffu. This is consistent with Det. Saffu’s evidence that PC Walker was speaking loudly to be heard over the loud music. I accept that the defendant did hear PC Walker tell Det. Saffu to “hold these guys.” But even if the defendant hadn’t heard those words, he saw Det. Saffu proceed to conduct pat down searches of Mr. Sitladeen, Mr. Lennon, and Mr. Hylton. Time was passing and police were still in the bar. Det. Fynes was speaking with the defendant at the bar. The other officers were interacting with other bar patrons, and walking around the bar and the patio, searching it. PC Walker showed the contents of the bag to other officers. Two more officers ran into the bar, at the urgent request of PC Walker. Cumulatively, police actions and words once the gun was found would have contributed to a reasonable perception that police were investigating something in particular - likely in relation to the black bag - and that the bar patrons themselves were the objects of that investigation. The circumstances giving rise to the encounter support a finding of detention arising from the finding of the gun.

[152] The circumstances giving rise to the search of the defendant as part of the parole investigation also support a finding that he was detained again at the time. Det. Fynes initially questioned the defendant about his conditions of parole, asked to see his parole papers, and asked PC Walker to run him on CPIC. She wanted to confirm that the defendant was complying with his parole conditions. She testified that the defendant was not required to answer her questions about his parole; that she would have run him on CPIC to confirm his conditions of parole in any event. In my view, when Det. Fynes was initially engaging with the defendant, she was delaying him but not detaining him. To a reasonable observer, this was a routine parole check. Det. Fynes was polite, kept the tone light, and was even joking with the defendant. This interaction was as minimally coercive as it could have been in the circumstances of an officer conducting a routine parole compliance check.

[153] However, the nature of the police interaction with the defendant changed when PC Walker conducted a pat down search of the defendant. PC Walker’s investigative purpose for doing so was to determine whether the defendant was in possession of weapons contrary to the terms of his parole. The officer had no reason to believe or suspect that the defendant was in possession of weapons. He testified that, in his view, he was entitled to search a person on bail or parole to confirm whether they were in compliance with their conditions. He told the defendant that he was going to search him, and directed him to empty the contents of his pockets onto the bar. The defendant stood, emptied his pockets, and allowed himself to be searched. At that point, the defendant was required to comply. Or, if he was not legally required to comply in the moment, a reasonable person in the defendant’s position would have felt so obligated, and would conclude that they were not free to walk away: Grant, at paras. 30 and 31. The Crown concedes that the defendant was investigatively detained at this point.

(ii) Nature of the Police Conduct

[154] The nature of the police conduct is a factor that comprehends a number of considerations. These include: the actions of the police and the language they used; the place where the police interaction with the defendant occurred and the police mode of entry; whether there was physical contact or physical proximity; the duration of the encounter; and the presence of others: Le, at para. 43.

** (ii.1) The actions of the police and the language they used **

[155] In the overall circumstances of this case, the language used by police and their actions support a finding of detention from when PC Walker found the gun, and again when PC Walker searched the defendant as part of the parole investigation.

[156] As noted, PC Walker made four verbal commands to the effect that no one could leave the bar, and directing his fellow officers not to allow anyone to leave. One of these comments was heard by the defendant. PC Walker also urgently called over the police radio to the two officers stationed outside to “get in here right now.” This command may or may not have been heard by the defendant and the other patrons over the music in the bar. It prompted DC Balloutine to run into the Little Hut.

[157] The one command from PC Walker that was certainly heard by the defendant, “hold these guys” would have conveyed to a reasonable observer that police were taking control of the situation, and that the patrons were not free to leave. If PC Walker’s other comments were heard by the defendant and/or other patrons, they too would have conveyed that police were taking control of the situation, and that they were not free to leave.

[158] PC Walker’s language when he told the defendant that he was going to be searched as part of the parole investigation was polite. His tone was civil and not aggressive. But his language and tone made clear that he was directing the defendant to comply, and expected him to do so. Although expressed politely and in a civil manner, the language and tone made clear that PC Walker was “exerting dominion” over the defendant: Le, at para. 47. The defendant had no choice to refuse to be searched, or to walk away. He had to submit to the search as directed, or would reasonably have perceived that to be the case.

** (ii.2) The place where the interaction occurred and the mode of entry **

[159] The place where the interaction occurred, and the mode of entry, support a conclusion that the defendant was detained from the time the gun was found.

[160] The police interaction with the defendant and the other patrons occurred in the Little Hut. This is a commercial establishment, a bar, open to the public. Anyone could walk into the Little Hut to drink and socialize. Equally, patrons could leave the bar and go home. The public nature of the establishment where a police interaction occurred would normally attenuate a finding of detention. People do not usually reasonably experience an interaction with police as being as “forceful, intimidating and threatening” in a public place as they do in their own home or backyard: Le, at para. 51. In addition, when an encounter with police occurs in a public space, people often can leave and go home as an “alternative place to retreat from further forced intrusion”: Le, at para. 51.

[161] However, in this case, the interaction occurred in a neighbourhood bar that was the regular hangout of the defendant and his social circle. The Little Hut was a familiar and comfortable place for these men. The police officers knew the defendant and his friends. They had policed this neighbourhood, including the Little Hut, as a “hot zone,” extensively in the past. In these circumstances, a police interaction in the Little Hut bar supports a conclusion of detention. While not as intimidating or forceful as policy entry into a private home, an interaction in a regular hangout that police knew the defendant and his friends frequented would have reasonably been perceived as intimidating and forceful. It would reasonably have supported a conclusion, in the absence of an apparent reason for the police attendance, that the police were there to investigate these men in this place.

[162] This is particularly so when the mode of entry involved three police officers entering together in what the defendant repeatedly described as a rushing and forceful manner. Followed soon after by a fourth officer who proceeded directly to the patio with purpose and returned directly with purpose holding up the black bag. Followed by a further two officers, one of whom said he ran into the bar when called. The defendant effectively said he found the police officers’ mode of entry to be intimidating. A reasonable person would have perceived it to be so.

** (ii.3) Physical contact **

[163] There was no physical contact between the defendant and the police until PC Walker searched him as part of the parole investigation. At that point, PC Walker patted around the defendant’s waist, between his legs, and the back of his pants covering his buttocks.

[164] Police had also made physical contact with Mr. Farrah when they handcuffed him. Det. Saffu had made physical contact with the three men he had investigatively detained when he searched them. These physical contacts were in plain view of the defendant.

[165] There was also physical proximity between the officers and the defendant and other bar patrons. When the gun was found, there were four police officers and approximately eight or nine patrons in a relatively small bar. Soon after, there were six police officers to the same number of patrons in the space. Some time later, two further officers attended, to make a total of eight police officers in the bar. The officers moved through the bar, stopping at various point to interact in proximity to the patrons. During the parole investigation, Det. Fynes was in close physical proximity to the defendant.

[166] The physical contact and proximity in a relatively small space, particularly that which occurred after the gun was found when police interaction with the bar patrons intensified, created “an atmosphere that would lead a reasonable person to conclude that the police were taking control and that it was impossible to leave”: Le, at para. 50.

** (ii.4) The duration of the encounter **

[167] Police were in the Little Hut for approximately 26 minutes from the time of first entry until the defendant was arrested, and about 22 minutes from when PC Walker re-entered the bar with the black bag until the arrest. This was a long time for police to be moving through the bar and interacting with patrons.

[168] The “overall duration of an encounter may contribute to the conclusion that a detention has occurred (i.e., the simple passage of time demonstrates how the person came to believe they could not leave)”: Le, at para. 66. I find that it did so in this case. The passage of so much time would have contributed to a reasonable perception that police were in the bar for a specific investigatory purpose (albeit one that was unknown to bar patrons), and that patrons were not free to leave until police had achieved that purpose.

** (ii.5) The presence of others **

[169] The police conduct toward the other patrons of the Little Hut would likely have had an impact on how a reasonable person in the defendant’s shoes would have perceived the situation. Here, the presence of others and their interactions with police would likely have increased a reasonable person’s perception that they were being detained: Le, at paras. 62-64. Mr. Williams, and other the other patrons, saw what was happening to them all. Each saw Mr. Farrah being questioned closely, and then being handcuffed. After the gun was found, they saw Det. Saffu with Mr. Sitladeen, Mr. Lennon, and Mr. Hylton positioned in a way that enabled him to question them and prevent them from leaving. They saw Det. Saffu conduct pat down searches of these three men. They saw Det. Fynes in close proximity to the defendant while questioning him, and PC Walker searching him by patting him down. These interactions, where “each man witnessed what was happening to them all,” illustrated that police were in control of the men’s movements and actions, that police were issuing “orders to be obeyed”: Le, at para. 63.

[170] Moreover, at no time did the police tell any of the bar patrons that they were free to go, or that they were free to refuse to interact with the officers. As in Le, at para. 64, what the defendant saw happening to other patrons:

. . . likely increased the perception and reality of coercion. The others simply did what the police told them to do – consistent conduct, which strongly suggests what a reasonable person would also have thought and done in these circumstances. A reasonable person would have thought they had no alternative, but to remain and obey.

(iii) Mr. Williams’s circumstances and characteristics

[171] To determine whether and when the defendant was detained, I must consider how a reasonable person in similar circumstances and with similar characteristics would have perceived the interaction with police: Le, at paras. 69-73. This must include consideration of how a reasonable person with a similar racial background would perceive the interaction.

[172] Following the Supreme Court’s guidance in Le, I recognize that there is disproportionate policing of racialized communities, including Black communities. This larger social context would have had an impact on the perceptions of an objectively reasonable person in the defendant’s situation: Le, at para. 97. This is because members of racialized communities “may, because of their background and experience, feel especially unable to disregard police directions, and feel that assertion of their right to walk away will itself be taken as evasive”: Grant (2009), at para. 169.

[173] In this case, the defendant testified that he had been regularly stopped by police, carded, questioned, searched, and “singled out” throughout his life. He explained that his neighbourhood was heavily policed. Based on his past experiences, if he tried to walk or run away from police, he would be stopped by them. The defendant said, given his experiences growing up as a Black man, he would rather avoid interactions with police. He explained that this informed his decision to go back into the bar to warn Sawali that he thought police were coming. And that it informed his feeling that he was not free to leave the bar once police arrived.

[174] The defendant’s evidence as to the heavy policing of Rexdale and the many interactions he and his friends had had with police was supported by the evidence of the police officers. Det. Fynes knew the defendant and his friends. She testified to having interacted with them in the past. She knew where many of them lived, had previously arrested the defendant in his home, and even joked with the defendant about his mother’s home cooking. PC Walker spoke of patrolling the neighbourhood “hot zones.” He had been in the Little Hut in the course of his policing duties in the past.

[175] I consider both the larger social context of disproportionate policing of Black men and the testimony of Mr. Williams to be relevant to my determination of when detention occurred. A reasonable person in the defendant’s circumstances would have been influenced by the social context and by the defendant’s experiences as a Black man within that social context. An objective assessment of what a reasonable person in Mr. William’s shoes perceived about whether he was free to leave includes consideration of the impact of race and the disproportionate policing of Black men: Le, at para. 106.

[176] I conclude that it is in this larger social context that the police entry into the Little Hut and interactions with the defendant and the other bar patrons must be approached. As in Le, at para. 97:

[i]t was another example of a common and shared experience of racialized young men: being frequently targeted, stopped, and subjected to pointed and familiar questions. The documented history of the relations between police and racialized communities would have had an impact on the perceptions of a reasonable person in the shoes of the accused.

When these police officers entered a neighbourhood bar that was the regular hangout of these Black men in Rexdale, the men “would have felt compelled to remain, answer and comply”: Le, at para. 97.

[177] I have considered Mr. Williams’s testimony about his history with police and his subjective perceptions above. I want to be clear that I do not consider his subjective perceptions to be determinative. I appreciate that the detention analysis is predominantly objective in nature: Grant (2009), at para. 32; Le, at paras. 114-116. An “individual’s particular circumstances and perceptions at the time may be relevant in assessing the reasonableness of any perceived power imbalance between the individual and the police” in the reasonableness inquiry: Grant (2009), at para. 32; Le, at para. 116. For this reason, I have only considered the defendant’s subjective perceptions insofar as they assist in determining what a similarly situated reasonable person would have objectively and reasonably perceived.

[178] Turning to the defendant’s personal characteristics, I find that his repeated interactions with police tend to support a finding that he was detained when police found the gun: “[a] reasonable person who has been stopped by the police on multiple prior occasions would more likely perceive that it is necessary to simply submit to police demands”: Le, at para. 110.

[179] Mr. Williams was 36 years old on the night in question. He was not of small or slight build. His age, maturity, and physical stature would not have exacerbated the power imbalance or knowledge gap between him and the police: Le, at paras. 122-123. These personal characteristics on their own would not have made the reasonable person in the defendant’s circumstances more likely to have reasonably considered themselves detained.

(iv) Conclusion as to when Mr. Williams was detained

[180] In the totality of the circumstances, an objectively reasonable person in the position of Mr. Williams would have reasonably considered that they were detained when police found the gun; and that they were detained again when PC Walker searched Mr. Williams as part of the parole investigation.

(b) Was the Detention Arbitrary?

[181] In my view, the investigative detention after the gun was found was not arbitrary, but the investigative detention as part of the parole investigation was.

[182] At the time the gun was found, there were only eight or nine patrons in the Little Hut bar. Police had objectively reasonable grounds to suspect that one of them must have been connected to the firearm, which was, if not prohibited, unregistered, or loaded (which police could not have known in the moment), at the very least stored dangerously and carelessly. When they detained everyone in the bar, police could not have known which person or people were and weren’t involved in the firearms offence. But they knew it was at least possible, if not probable, that at least one of the people in the bar had committed a firearms offence. This was a constellation of objectively discernible facts which gave the police reasonable grounds to suspect everyone in the bar at the time: Simpson, at para. 61, This was a serious offence, with potentially serious public safety consequences. If police had not investigatively detained all eight or nine people in the bar, the perpetrator could have left the bar and eluded police.

[183] It is no small matter to deprive eight or nine people of liberty, and no small matter to detain everyone in an entire bar. Particularly when some number of them may have had no involvement in the firearms offence. However, the investigative detention was not expected to be of long duration. The detaining officers knew from experience that the Little Hut had multiple surveillance cameras. They expected to be able to review the videos to determine who had left the black bag on the patio in relatively short order. This was a detention of eight or nine people, not hundreds or even dozens. And this was a detention of everyone in a small neighbourhood bar, not a large sports stadium or multiple city blocks. Given the danger posed by firearms and the seriousness of firearms offences, a detention of eight or nine people – at least one of whom was probably involved in a firearms offence – in a bar for a relatively short period of time to facilitate investigation was an objectively reasonably and appropriately tailored detention: Clayton, at para. 31.

[184] In the totality of the circumstances, the investigative detention of the patrons of the Little Hut bar from the time the gun was found was not arbitrary.

[185] The same cannot be said of the detention of the defendant when he was searched by PC Walker to investigate his compliance with parole. PC Walker readily acknowledged he did not have any suspicion that the defendant was in possession of a weapon at the time of the search. He said he did not have any reason to believe or suspect that the defendant was breaching any condition of parole. He simply believed that he was entitled to conduct a pat down search of anyone he encountered who was on bail or parole, even where there was no basis for a reasonable suspicion that they were in breach.

[186] This investigative detention was not reasonably necessarily or authorized by law. It was an arbitrary detention, in violation of s. 9 of the Charter.

(c) Sections 8, 10(a) and 10(b) Applications Arising from the Section 9 Applications

[187] The defence submits that the defendant’s rights under ss. 10(a) and (b) were breached when he was investigatively detained after the gun was found, and that his ss. 8 and 10(b) rights were breached when he was again investigatively detained and searched during the parole investigation. The Crown acknowledges that there were two breaches of s. 10(b). The first when Mr. Williams was detained as part of the parole investigation and not advised of his right to counsel; and the second when he (and everyone else in the Little Hut) were told they were investigatively detained in relation to the firearms investigation but not advised of their right to counsel.

[188] I find that Mr. Williams’s right to be advised of the reason for his detention under s. 10(a) and his right to be advised of the right to counsel under s. 10(b) were breached when he was detained after the gun was found. I further find that his rights to be free from unreasonable search and seizure under s. 8 and to counsel under s. 10(b) were violated when he was detained to be searched as part of the parole investigation.

[189] Upon being investigatively detained for the gun investigation, the defendant had a right to be promptly informed of the detention and the reasons for it under s. 10(a) of the Charter: Mann, at para. 21. He also had a s. 10(b) right to counsel, and a right to be advised of that right, that arose immediately on detention: Suberu, at paras. 2, 37-42. Police did not tell him, or anyone in the bar, that they were detained – nor why – when the gun was found, and the investigative detention began. It was only approximately 15 minutes later that Det. Fynes announced to everyone in the bar that they were detained for a firearms investigation. Police did not tell Mr. Williams, or anyone in the bar, that they had a right to counsel when they were detained in respect of the firearms investigation. Mr. Williams’s s. 10(a) and (b) rights were violated when he was detained for the firearms investigation.

[190] When police again investigatively detained Mr. Williams to search him in relation to parole, they did not advise him of the reasons for his detention or advise him of his right to counsel. It would have been clear to the defendant in these circumstances that he was being detained in relation to a parole investigation. Det. Fynes had been asking about his parole conditions and asked him to produce his parole papers. PC Walker told the defendant that he was going to “check him out” in relation to the no weapons condition of parole. In my view, there was no s. 10(a) breach here, because the reasons for detention would have been obvious to the defendant: Nguyen, at paras. 12 and 16. But the failure to advise him of the right to counsel on this detention did represent a violation of s. 10(b). The Crown concedes that this is so.

[191] Turning to the pat down search conducted by PC Walker, I note that the police power to search incident to investigative detention must be authorized by law, and must be exercised in a reasonable manner: Mann, at para. 45. To be authorized by law, a pat down search incident to investigative detention must be pursuant to a lawful investigative detention and may only be conducted where the officer has reasonable grounds to believe there are public safety reasons to search: Mann, at paras. 40 and 45.

[192] I have already found that Mr. Williams’s investigative detention for the parole investigation was arbitrary and violated s. 9 of the Charter. As a result, the requirement that a search incident to lawful investigative detention is not met. The search incident to the arbitrary investigative detention was not reasonable or authorized by law. In addition, PC Walker acknowledged that he did not have reasonable grounds to suspect that the defendant was in possession of a weapon or was otherwise in breach of his parole conditions. I conclude that there were no officer or public safety concerns that warranted a pat down search incident to investigative detention. The search breached s. 8 of the Charter.

IV. THE SECTION 10(b) APPLICATION

A. Overview of Applicable Legal Principles

[193] Section 10(b) of the Charter guarantees the right, upon arrest or detention, to retain and instruct counsel without delay and the right to be informed of that right. The right to counsel is intended to assist detained persons to regain their liberty, and to help guard against the risk of self-incrimination: Suberu, at para. 40. Courts have repeatedly emphasized the importance of the right to counsel. Contact with counsel allows a detainee to seek advice relevant to their legal situation, including: the lawfulness of their detention or arrest; regaining their liberty; their obligations to comply with police demands; the right to silence and how to exercise that right to avoid self-incrimination: R. v. Lafrance, 2022 SCC 32, 416 C.C.C. (3d) 183, at para. 71. The right to counsel also fills the important role of giving detained persons “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, 143 O.R. (3d) 135, at para. 45.

[194] A detained person’s right to counsel creates three corresponding duties for the police officers detaining them. These police duties are: (1) the duty to inform a detained person of their right to counsel (the informational duty); (2) the duty to give a detained person who wishes to do so a reasonable opportunity to exercise the right without delay (the implementational duty); and (3) the duty not to seek to elicit information from a detained person until they have had a reasonable opportunity to retain and instruct counsel (the duty to hold off): Lafrance, at para. 72; R. v. Manninen, 1987 67 (SCC), [1987] 1 S.C.R. 1233; R. v. Ross, 1989 134 (SCC), [1989] 1 S.C.R. 3, at pp. 10-12; R. v. Black, 1989 75 (SCC), [1989] 2 S.C.R. 138, at p.140.

[195] The informational duty requires that police inform a detained person of the right to speak with counsel without delay. If a detained person wishes to exercise the right, police must immediately provide them with a reasonable opportunity to do so: Suberu, at paras. 2, 38, 42; Rover, at para. 25. The arresting officer is under a constitutional obligation to facilitate access to counsel “at the first reasonably available opportunity”: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 24-25.

[196] However, there are some circumstances in which courts have recognized that a delay in implementing the right to counsel may be justified: Rover, at para. 26. These include:

(1) where required for officer or public safety: Rover, at para. 26;

(2) where required to preserve evidence: Rover, at para. 26;

(3) where required to gain control of the arrest scene and search for restricted weapons known to be there: R. v. Strachan, 1988 25 (SCC), [1988] 2 S.C.R. 980, at pp. 998-999, cited in Rover, at para. 26;

(4) in specific circumstances relating to the execution of search warrants: R. v. Learning, 2010 ONSC 3816, 2010 ONSC 3815, 258 C.C.C. (3d) 68, at paras. 71-75, cited in Rover, at para. 26;

(5) where there are risks associated with calling third parties during an ongoing investigation: R. v. Patrick, 2017 BCCA 57, 344 C.C.C. (3d) 137, at para. 113; R. v. McPake, 2019 BCSC 751, at para. 256; and

(6) where the detained person would not immediately be able to consult with counsel in private. This is because “[c]onsultation in private is a vital component of the s. 10(b) right”: R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 77.

[197] Police must turn their minds to the specific circumstances to determine whether there is some reasonable basis for delaying access to counsel. Even where those circumstances exist, police must still take “reasonable steps to minimize the delay in granting access to counsel”: Rover, at para. 27; R. v. La, 2018 ONCA 830, 366 C.C.C. (3d) 351, at para. 40.

[198] Where there is delay in giving a detained person access to counsel, the burden is on the Crown to demonstrate that the delay was reasonable: Patrick (BCCA), at para. 116.

B. Application to this Case

(1) Evidence

[199] DC Balloutine arrested the defendant for possession of a firearm at 9:19:30 pm and handcuffed him. He did not advise Mr. Williams of his right to counsel at that time. At 9:19:48 pm, DC Balloutine searched the defendant and emptied his pockets. There was some discussion of the items in the defendant’s possession. Mr. Williams said he wanted to transfer some of his property to Mr. Hylton to take home for him. Police facilitated this.

[200] At approximately 9:20 pm, Det. Fynes told the other patrons in the bar that they were free to go. Everyone left the bar except the police officers and the defendant at this time. There were eight police officers present. In addition to the six officers already mentioned, Officers Sirpal and Yamada had arrived at the scene prior to the defendant’s arrest.

[201] At 9:25:10 pm, PC Walker noted that they had to give rights to counsel. DC Balloutine agreed, and at approximately 9:25:40 pm advised the defendant of his right to counsel. Mr. Williams indicated that he wanted to speak with his lawyer and gave the lawyer’s name.

[202] DC Balloutine explained that when he makes an arrest, it is his practice to immediately do a pat down search for weapons and contraband. Once he is satisfied that there is no safety risk to the individual or to police, he advises them of their right to counsel. He acknowledged that Mr. Williams was handcuffed to the rear at this point, but maintained that he still had safety concerns given that this was a firearms investigation. DC Balloutine said that, in his view, dealing with an arrestee’s property would distract them from understanding their right to counsel. He said he does his best to make sure they understand the right. He said it is not the way he “does things” to advise of the right to counsel immediately after informing a person that they have been arrested. Det. Balloutine agreed that there is a risk that the person could blurt out something incriminating between when he arrests them and when he later advises them of the right to counsel.

[203] Around this time, police officers found a second gun in the Little Hut, secreted near the pool table.

[204] The defendant was seated at the bar, still handcuffed to the rear, awaiting the arrival of the marked police car that would transport him to the station. DC Balloutine stood nearby. At 9:26:52 pm, he gave the defendant a drink from a water bottle. Other police officers were dealing with the investigation into the second firearm.

[205] At approximately 9:28 pm, DC Balloutine cautioned the defendant that anything he said may be used in evidence. The defendant said he understood. Det. Balloutine did not advise the defendant of his right to silence.

[206] No police officers questioned the defendant about the firearm between his arrest and when he ultimately spoke with his lawyer. DC Balloutine recognized that it would not be proper to do so before the defendant had had an opportunity to speak with counsel.

[207] The transport vehicle arrived at approximately 9:39 pm. At approximately 9:40 pm, the defendant entered the vehicle, which arrived at the station at 9:45 pm. There was a 22-minute delay at that point, during which the defendant sat in the police vehicle in the sallyport of the station. Between 10:07 and 10:19 pm, the defendant was paraded and booked. At 10:19 pm, Mr. Williams was place into an interview room. It then took a further 17 minutes for DC Balloutine to contact the defendant’s lawyer. DC Balloutine explained that during this period, he used the facilities at the station, and then signed onto his computer which takes a few minutes. At 10:36 pm, DC Balloutine contacted the defendant’s lawyer. Mr. Williams spoke with his lawyer on the phone. The call ended at 10:50 pm.

[208] DC Balloutine agreed that he had an obligation to facilitate the defendant speaking to counsel as soon as practicable and once it could be done privately. He testified that it did not occur to him, while waiting for the transport vehicle, to allow the defendant to make a private call to counsel. He said he never allows a person to use his phone, whether in or out of custody. DC Balloutine did not inquire as to whether there was a cordless phone at the Little Hut that the defendant could use to call counsel while waiting for transport. There was no place in the Little Hut from which the defendant could have made a private call to counsel, according to DC Balloutine. He said the video room was the only possible place where that could have happened, but that it was too small; and he would not have allowed the defendant to be alone with the video evidence.

[209] DC Balloutine did not think it would have been safe or appropriate for him to let the defendant speak to counsel from the locked transport vehicle with police officers standing by outside. He explained that there is in-car video in police vehicles. This can be turned off, but police officers are not supposed to do this. DC Balloutine said he would not risk being reprimanded for turning off a scout car video. In addition, he said that police body cameras can sometimes record audio through a police vehicle, and that police vehicles have tinted windows so officers would not be able to keep an eye on the defendant without literally peering through the windows while the defendant was talking to his lawyer. DC Balloutine did not think of exploring whether he could walk the defendant into one of the interview rooms to call counsel during the wait in the sallyport. He explained that no one is allowed to enter a police station without having been paraded first.

[210] Det. Fynes testified that she did not consider it appropriate to give the defendant a private phone or a connected police phone to call counsel while he was awaiting transport. She also did not consider taking him to a police car, closing the door for privacy, and having officers stand by outside the car. Det. Fynes explained that they were very close to the police station. Transport had already been arranged. Police were not questioning the defendant about the offence. She said it did not cross her mind to take any steps to facilitate access to counsel before he was booked at the station because she did not expect that it would take long for the defendant to get to the station, be paraded, and be able to speak with his lawyer. Det. Fynes said that if she had known it was going to take a long time for the defendant to be able to access his right to counsel, she would have looked for a scenario in which he could speak to counsel with safety and privacy sooner.

(2) Analysis

[211] In my view, police violated the defendant’s right to counsel by not informing him of the right immediately upon arrest, and by not providing him immediately with a reasonable opportunity to access the right.

[212] Mr. Williams was not advised of his right to counsel until six minutes after he was arrested. He immediately asserted that he wanted to speak to his lawyer, and gave the lawyer’s name. He ultimately spoke with his lawyer for the first time one hour and 17 minutes after his arrest.

[213] The six-minute delay meant that Mr. Williams was not advised of his s. 10(b) rights immediately. Det Balloutine’s explanation for this delay was that it was not his practice to give rights to counsel until after a pat down safety search had been conducted, and the arrestee’s property had been dealt with. While officer or public safety has been recognized as a justifiable basis for delaying implementation of the right to counsel, that reason for delaying satisfaction of the officer’s informational duties did not obtain in this case: Rover, at para. 26. A pat down search of the defendant had already been conducted by PC Walker during the parole investigation, and no weapons or contraband were located on him. Accordingly, there were no safety concerns that required an immediate second search of the defendant. While DC Balloutine testified that he was not aware of the earlier pat down search, PC Walker was. PC Walker was present for the defendant’s arrest and was aware that rights to counsel had not yet been given. He reminded DC Balloutine that right to counsel still had to be given. It was incumbent on PC Walker, who was possessed of full information, to ensure that the right to counsel was not delayed for a redundant safety search.

[214] Moreover, the defendant was handcuffed to the rear immediately upon arrest. It was still possible, in theory, that he could have posed a safety risk to officers while handcuffed, but it was extremely unlikely in all the circumstances here. The defendant had been cooperative with police throughout the parole investigation and his arrest. He was the only patron in the bar, and there were approximately eight police officers present at the time. It was not reasonable for police to delay advising the defendant of his right to counsel to facilitate a pat down search for safety reasons in all the circumstances of this case.

[215] The six-minute delay in advising the defendant of his right to counsel violated s. 10(b) of the Charter.

[216] The hour and 17 minute delay between Mr. Williams’s arrest and his telephone call with his lawyer meant that he was not immediately afforded a reasonable opportunity to exercise his right to counsel. DC Balloutine’s explanation for the lengthy delay was effectively that he did not consider there to have been a reasonable safe and private way for the defendant to speak with his lawyer sooner. Det. Fynes explained the delay by effectively saying she did not consider devising a way for the defendant to speak with his lawyer before he got to the police station and was paraded. This, she said, was because she expected that it would be a short delay.

[217] Courts have recognized, as noted, that a delay in implementing the right to counsel may be justifiable where necessary for police or public safety, or to ensure that the arrestee can speak to their lawyer in private: Rover, at para. 26; Pileggi, at para. 77. I accept that having a defendant speak to their lawyer in a locked interview room at a police station after they have been paraded and booked is the gold standard for safety and privacy. But I do not accept that waiting for the defendant to be booked at the police station in the circumstances of this case was the only way to ensure that he could safely and privately speak with his lawyer. Indeed, Det. Fynes acknowledged that if she had known that it was going to take a long time for the defendant to be able to speak with his lawyer at the station, she would have looked for a way to enable him to speak with his lawyer safely and privately sooner.

[218] In my view, the police could have devised a way for Mr. Williams to speak with his lawyer sooner that would have been both safe and private. In the hour and 11 minutes between when he was advised of the right to counsel and when he was afforded the opportunity to access the right, Mr. Williams spent: (1) approximately 15 minutes sitting at the bar, handcuffed to the rear, with eight police officers and no other patrons present; (2) approximately five minutes in the back of the police car being transported to the station; (3) 22 minutes sitting in the back of the police car in the sallyport of the police station; (4) 12 minutes being paraded and booked; and (5) 17 minutes in the police station interview room waiting to speak with counsel. I do not accept that in all this time, it was impossible for police to facilitate access to counsel in a way that would have been safe and private.

[219] It does not strain the imagination to develop scenarios in which this could have happened. I do not intend to rehearse all the various possibilities. But some that spring to mind include: that the defendant could have used a cordless phone, if there was one, in the men’s washroom of the Little Hut if there were no windows or other means of egress, with police officers stationed outside guarding the door; or he could have used a cordless phone, if there was one, in the video room of the Little Hut bar with the videos removed from that room by police officers and the door closed, or in the kitchen of the Little Hut if there was one, with officers stationed outside the door guarding it; or he could have spoken on a cellphone or cordless phone in the back of the police vehicle in the sallyport, with the sound of the in-car camera turned off, the doors locked, and officers stationed outside the car. The fifteen minutes during which the defendant was seated at the bar awaiting transport present as a particularly opportune time for him to have been given access to counsel. The video depicts that the defendant was seated at the bar, with many police officers around, and nothing at all happening. Watching the video, those 15 minutes present as an ocean of time. Given the importance of the right to counsel for detained persons, as time was passing, officers could and should have considered how to safely and privately facilitate the defendant’s access to counsel sooner. If there was a will, in all this time, there could have been a way. No police officer even explored whether a situation could be created in which Mr. Williams could safely and privately speak to his lawyer sooner. No officer considered how to minimize the mounting delay, as they were required to do.

[220] The Crown has not satisfied its burden of establishing that the delay in facilitating access to counsel was reasonable. The one hour and 17 minute delay violated s. 10(b) of the Charter.

V. SECTION 24(2) OF THE CHARTER

[221] I have determined that the search of the defendant’s bag violated his right to be free from unreasonable search and seizure contrary to s. 8 of the Charter; that his rights under ss. 10(a) and (b) were violated when he was investigatively detained after the gun was found; that his rights under ss. 8, 9 and 10(b) were violated when he was again investigatively detained and searched as part of the parole investigation; and that his right to counsel under s. 10(b) of the Charter was violated upon arrest. I now turn to consider Mr. Williams’s request that I exclude the evidence that was obtained in breach of the Charter under s. 24(2).

[222] This requires two determinations. The first is a “threshold requirement” which “asks whether the evidence was “obtained in a manner” that infringed or denied a Charter right or freedom”: R. v. Beaver, 2022 SCC 54, 420 C.C.C. (3d) 421, at para. 94. If the threshold is met, the court moves on to make the second determination. Here the court must evaluate whether, on balance, in all the circumstances, the admission of the evidence would bring the administration of justice into disrepute over the long term: Beaver, at para. 94.

[223] The evaluative component of the s. 24(2) analysis requires the court to consider three avenues of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused’s Charter-protected interests; and (3) society’s interest in the adjudication of the case on its merits: Grant, at para. 71.

[224] The assessment, weighing, and balancing of these three inquiries to determine whether exclusion would bring the administration of justice into disrepute is a long-term, prospective, systemic, and objective exercise: Grant (2009), at paras. 67-70; Beaver, at para. 133.

(1) The Threshold Requirement: Was the Evidence “Obtained in a Manner” that Violated the Charter?

[225] The threshold for s. 24(2) to be engaged is that there must be a sufficient nexus between the Charter breach and the impugned evidence: R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, at para. 71. Determining whether such a nexus is present “involves a case-specific factual inquiry into the existence and sufficiency of the connection between the Charter breach and the evidence obtained”: Beaver, at para. 95. This does not require a causal relationship between the breach and the evidence at issue: Strachan, at pp. 1003-1004. The connection may be “temporal, contextual, causal or a combination of the three” as long as the connection is not “too tenuous or remote”: R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21; R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38; R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 56, 72. Courts have adopted a purposive approach to this inquiry: Beaver, at para. 96; Mack, at para. 38.

[226] In this case, the evidence the defendant seeks to exclude is the firearm. I have found that the police search that led to the finding of the firearm violated the defendant’s s. 8 right to be free from unreasonable search and seizure. Accordingly, there is a direct causal relationship between this Charter breach and the evidence at issue. The evidence was “obtained in a manner” that violated the Charter.

[227] I also consider that the impugned evidence was “obtained in a manner” that violated the Charter as a result of the ss. 8, 9, 10(a) and (b) breaches that occurred subsequent to the discovery of the evidence. These subsequent breaches are contextually and temporally connected to the finding of the gun. They are part of the same transaction or course of conduct between the police and Mr. Williams: R. v. Tim, 2022 SCC 12, 412 C.C.C. (3d) 147, at para. 78; Pino, at para. 72. The breaches subsequent to the finding of the gun are part of the “entire chain of events during which the Charter violation occurred”: Strachan, at para. 26. From the time the gun was discovered through to his arrest and ultimate access to counsel, Mr. Williams was at all times detained or arrested by police. He had a number of Charter rights as a detained and then an arrested person, all of which temporally and contextually flowed from the police discovery of the gun and the investigation that followed. It is not material to the threshold s. 24(2) analysis that some of the rights violations occurred after the discovery of the evidence. Whether evidence is found before or after Charter violations, “the administration of justice could be brought into disrepute if the court condoned serious Charter violations”: Pino, at para. 77.

[228] The threshold requirement is met. I move on to consider whether admission of the evidence would bring the administration of justice into disrepute.

(2) The Evaluative Component: Would Admission of the Evidence Bring the Administration of Justice into Disrepute?

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

(i) Applicable legal principles

[229] The first Grant line of inquiry under s. 24(2) “asks whether the Charter-infringing state conduct is so serious that the court must dissociate itself from it”: R. v. Zacharias, 2023 SCC 30 at para. 51. To make this determination, the infringing state conduct must be situated on a “scale of culpability”: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 43. Technical, minor, or inadvertent breaches will be situated at the less serious end of the spectrum: Zacharias, at para. 51. Deliberate or flagrant breaches will be at the most serious end of the spectrum: R. v. Adler, 2020 ONCA 246, 388 C.C.C. (3d) 114, at para. 27. Careless or negligent breaches, or ignorance of Charter standards, lie somewhere in between, and can underpin a finding that a breach is serious: R. v. Booth, 2019 ONCA 970, 386 C.C.C. (3d) 281, at para. 59.

[230] The more serious the state’s Charter-violating conduct, the greater the need for the court to disassociate itself by excluding evidence under s. 24(2): Beaver, at para. 120.

[231] In conducting a s. 24(2) analysis where there are multiple breaches, the court must determine whether subsequent breaches are “consequential” to an initial or earlier breach; or whether they are more properly characterized as additional or independent state misconduct: Zacharias, at paras. 47-49. In the context of a case where the appellant’s arrest was unconstitutional only because it relied on evidence that was obtained in an unconstitutional search following an unconstitutional detention, in Zacharias, at paras. 47-49, the Supreme Court explained the difference between consequential and independent breaches as follows:

Where an arrest is unlawful because it is premised on the results of a Charter breach, it is the initial Charter breach that renders what follows unlawful. In other words, there is a situation of linked or “cascading” Charter breaches. We use the term “consequential” to refer to such breaches in the s. 24(2) analysis because the subsequent arrest is unlawful only as a consequence of the “initial” breach or breaches that preceded it.

Importantly, an arrest that can be viewed only as a consequential breach is distinct from state action that is characterized by additional or independent misconduct, including conduct that can be considered an “independent” breach of the Charter (such as failing to give an arbitrarily detained accused their right to counsel upon arrest). In those circumstances, the subsequent state action is of a different character and will be factored into the s. 24(2) analysis differently.

A pattern of Charter breaches, for example, may cumulatively increase the seriousness of the Charter-infringing state conduct. Some factual scenarios will raise the issue of cumulative breaches, which may evidence a pattern of misconduct, rather than consequential ones alone, which will likely not. [Internal citations omitted]. [Emphasis in original].

[232] Multiple Charter violations must be considered in both the first and second Grant lines of inquiry in a s. 24(2) analysis: Zacharias, at para. 52. Consequential breaches are unlikely to meaningfully affect the seriousness of the state misconduct at the first prong of the Grant test. In the absence of additional or independent state misconduct, the focus in assessing seriousness is likely to remain the initial breach: Zacharias, at para. 52. That having been said, consequential breaches may be more meaningful in assessing the second line of inquiry under 24(2), the impact of the breaches on the accused’s Charter-protected interests. This is because “[w]hen additional rights and breaches of those rights are factored into the s. 24(2) analysis, there will necessarily be a more significant impact on the accused that is therefore relevant to the analysis of the second Grant factor”: Zacharias, at para. 56. Breaches that represent independent state misconduct (and are not consequential breaches) may form a pattern of Charter violations that are cumulative, and render the Charter-infringing state conduct both more serious and more impactful on the accused’s Charter-protected interests: Zacharias, at para. 49.

(ii) Analysis

[233] In this case, the initial s. 8 breach caused by an unlawful search of Mr. Williams’s bag was serious.

[234] PC Walker testified that his first thought upon finding the bag was to open it to determine ownership. Yet he acknowledged that he did not even consider watching the bar’s surveillance video to determine ownership, or taking the bag inside and asking who owned it. PC Walker recognized that a person might leave their bag unattended in a bar, or that they might go out to have a smoke and accidentally leave their bag behind. A rights-respecting approach to determining ownership of a bag in this context would have required PC Walker to take a less privacy-invasive step than searching the contents of the bag without a warrant – like continuing to investigate by viewing the video or asking bar patrons about ownership.

[235] But PC Walker was not just trying to determine ownership. He testified that he suspected that whoever he had seen through the gap in the fence was secreting the bag to avoid being caught with it by police. PC Walker suspected that the bag contained something illegal, and he wanted to know what it was. To open the bag and find out, he could have chosen a Charter-compliant manner of proceeding. He could have seized the bag and then sought a warrant or telewarrant to authorize a search of its contents. But he did not do that. Instead, as the video depicts, he opened the bag immediately upon finding it, without a moment’s pause to reflect or consider. There was no urgency or exigent circumstance, risk of destruction of evidence, or safety issue that required PC Walker to open the bag immediately without a warrant. Once the bag was in his possession, its contents could pose no risk to the public or police, and could not be destroyed.

[236] PC Walker sought to justify his actions in immediately searching the contents of the bag by explaining that he thought the bag was clearly abandoned. It appeared to him that the bag was hidden between the bench and the wall on purpose, to abandon it. The Crown argued in relation to the first Grant factor that if the bag was not actually abandoned, it would reasonably have appeared to PC Walker that it was. This would, in the Crown’s argument, attenuate the seriousness of the s. 8 breach. I accept that the seriousness of the breach is somewhat attenuated by PC Walker’s perception of what he was able to see through the gap in the fence line.

[237] PC Walker could not see much detail when he was peering between the wood slats of the fence. He saw a man come out onto the patio, bend over from the waist, place an item down, and then return to the bar. This entire transaction took two to four seconds. PC Walker could not see the man well enough to describe or identify him. He could not see the item that was placed down but at trial, with the benefit of hindsight, he said he thought it was a bag.

[238] For a period of approximately two minutes starting at 8:56:35 pm, and especially around 8:57:36 and 8:58:21 pm, DC Balloutine’s body-worn camera video provides a good view of the fence surrounding the Little Hut’s patio. It reveals that the wood slats of the fence are very close together. It would have been very difficult for PC Walker to see much detail through those gaps.

[239] In these circumstances, it was not reasonable for PC Walker to conclude that the black bag he found was certainly abandoned by its owner. A reasonable police officer, concerned about protection of Charter rights, would have considered how little detail he had seen of what happened on the patio; what might have happened that he could not see. He would have considered the expectation of privacy people have in the contents of their sealed bags, and that people do leave bags unattended or momentarily left behind when forgotten at bars. A prudent officer, endeavouring to act in a Charter-compliant manner in these circumstances, would have considered the real possibility that the bag was not abandoned and sought judicial authorization before searching it.

[240] I accept that PC Walker perceived that the bag was abandoned based on what he did observe through the fence. That he did so suggests that this was not a deliberate or flagrant breach of s. 8. As such, it was not a Charter violation at the most serious end of the culpability spectrum. But, in my view, the state misconduct was still serious. It represented a failure to consider all the relevant circumstances raising the possibility that the bag was not abandoned. It was incumbent on him to consider that it might not be. In the face of uncertainty, police officers should act with prudence to protect Charter rights: R. v. McColman, 2023 SCC 8, 423 C.C.C. (3d) 423, at para. 60. PC Walker’s failure to do so makes this breach negligent or reckless. Especially since he was not compelled to act quickly to prevent the disappearance of evidence, and could have searched without a Charter violation by seeking a warrant: McColman, at para. 58.

[241] PC Walker’s honest perception that the bag was abandoned also tells against a finding of bad faith on his part. However, absence of bad faith is not tantamount to “a positive finding of good faith”: Le, at para. 147. It is only in exceptional circumstances that “deliberate, negligent or wilfully blind state conduct” will permit a finding of good faith: R. v. Dhillon, 2012 BCCA 254, 291 C.C.C. (3d) 93, at para. 76. This is not such an exceptional circumstance for any reason I can discern. The lack of bad faith on PC Walker’s part does not make this a good faith breach. Overall, the initial s. 8 breach was serious.

[242] The subsequent breaches were moderately serious to serious.

[243] The breaches of ss. 10(a) and (b) that arose when police failed to advise the defendant, and everyone else in the bar, of the reason for their detention and of their right to counsel were serious. Police officers testified that they did not consider everyone in the bar investigatively detained until Det. Fynes made a general announcement that they were. This was some 15 minutes after a reasonable person in Mr. Williams’s shoes would have perceived that they were not free to leave. However, throughout those 15 minutes, according to the police, no one was in fact free to leave the bar. PC Walker repeatedly said as much. The officers did not want to announce what Det. Fynes described as a ‘mass investigative detention,’ largely because they did not think they could facilitate access to counsel for all the patrons of the bar. They said they would have investigatively detained and given rights to counsel to anyone who had tried to leave. This demonstrates that the police knew that they were required to inform detainees that they had a right to counsel and to facilitate immediate access to that right. They sought to avoid their s. 10(b) obligations, which they considered difficult or impossible to discharge, by closing their eyes to the fact that they had investigatively detained everyone in the bar. This was, at best, wilful blindness to their Charter obligations on the part of the police. At worst, it was a deliberate circumventing of Mr. Williams’s ss. 10(a) and (b) rights. This police misconduct was made worse by the fact that it also violated the ss. 10(a) and (b) rights of the other seven or eight patrons in the bar.

[244] The approach of the police here reversed the constitutionally-required chain of causation. Sections 10(a) and (b) rights arise immediately upon detention. The rights flow from the detention, because it is detention that makes a detainee legally vulnerable. Detention restricts a detainee’s liberty, subjects them to the coercive power of the state, and exposes them to risk of involuntary self-incrimination and jeopardy. It is upon detention that a detainee needs the protections that ss. 10(a) and (b) afford: Suberu, at paras. 40-41; Grant, at para. 58. It is not the case that a person is only detained once they are informed of their rights under ss. 10(a) and (b), as the police approach here seems to have assumed. Here, the police said they would only have informed a bar patron that they were detained and given them their ss. 10(a) and (b) rights if they had tried to leave. It cannot be that a detained person must try to assert their liberty by trying to leave a police detention of which they have not been informed, in order to have a right to be informed of that detention and the rights that arise from it. A person cannot assert or access a right they do not know they have, or one that flows from a legal status they have not been informed they are in. The police approach to detention and the rights that flow from it here created a situation of impossibility for the defendant. One that the police knew or should have known was constitutionally impermissible. This was serious Charter-infringing conduct.

[245] However, for the most part, the police did not question bar patrons about the firearms offence. Nor did police otherwise attempt to elicit incriminating evidence from them during the investigative detention. The one exception to this rule occurred when PC Walker re-entered the Little Hut from the patio with the bag, asking whether anyone owned it. This question had the potential to elicit incriminating evidence at a time when bar patrons were investigatively detained but had not been advised of that status, the reasons for the detention, or their right to counsel. But overall, I do consider the seriousness of the police conduct to be somewhat attenuated by the fact that, aside from the one question from PC Walker, police held off questioning