COURT FILE NO.: CR-22-30000647 DATE: 20240426

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – ZUVAAN HAMILTON

COUNSEL: Anita Kocula, for the Crown Kendra Stanyon, for Zuvaan Hamilton

HEARD: January 11, 12, February 15, March 7, 12, 2024

REASONS FOR JUDGMENT ON CHARTER APPLICATION

R.F. GOLDSTEIN J.

[1] Mr. Hamilton was arrested by the Toronto Police on November 1, 2021. He had a gun in his jacket. He brought an application to exclude the gun from his trial. His counsel concentrated on two alleged violations. The first involved a cursory search of Mr. Hamilton’s phone, thus violating s. 8 of the Charter. The second involved a delay of 2 hours and 26 minutes from the time he received his right to counsel until the time a call was facilitated, thus violating s. 10(b) of the Charter.

[2] In my respectful view the police did not violate Mr. Hamilton’s s. 8 rights nor his s. 10(b) Charter rights. I heard the motion over several days in January, February, and March 2024. Since Mr. Hamilton’s trial was set to commence on March 18, 2024, I gave the parties a brief ruling on March 15, 2024 with reasons to follow. I said:

Mr. Hamilton applies to exclude evidence from his trial. The evidence is a handgun. It was seized from him on November 1, 2021, in the early morning hours at a RIDE checkpoint. He argues that his s. 10(b) Charter rights were violated because of the length of time it took him to have a call to counsel after his arrest. He also argues that his s. 8 Charter rights were violated in the course of the s. 10(b) violation when a police officer examined his phone.

In my view, the police did not violate either his s. 10(b) or his s. 8 Charter rights. If they did violate either section, they were minor violations and I would not exclude the gun under s. 24(2) of the Charter. As a result, the application is dismissed.

[3] What follows are my reasons.

BACKGROUND

[4] In the early morning hours of November 1, 2021, Ontario Provincial Police (“OPP”) officers set up a RIDE checkpoint on the northbound ramp from Midland Road to Highway 401 eastbound in Toronto. The purpose of a RIDE stop is to randomly check vehicles for the sobriety of the driver.

[5] PC Commission testified that at 2:38 he observed a vehicle approaching. He stopped the vehicle. There were five people in the car. He asked the driver if they had consumed alcohol. He saw that the person in the rear passenger seat – Zuvaan Hamilton – had what appeared to be an open bottle of alcohol. PC Johal testified that she was standing by to assist PC Commission. She observed a Hennessy bottle between the legs of the rear passenger. PC Duale also testified that he observed an individual in the back seat with a bottle of liquor. He observed that there was a female driving, another female in the front passenger seat, and three people in the rear passenger seat. Those three were a male –Boyd Alexander – in the rear driver’s side seat; a female in the middle; and a male – Zuvaan Hamilton – in the rear passenger’s side seat.

[6] PC Commission told the occupants that they could not have an open bottle of liquor in the car. He informed the occupants that he was now conducting a Liquor Licence Act investigation. In cross-examination he stated that at a RIDE checkpoint he only had the authority to detain the driver to ask questions. Once the investigation changed to one under the Liquor Licence Act he had authority to detain the passengers as part of the investigation.

[7] PC Commission then moved to the rear passenger side of the car to speak to Mr. Hamilton. He asked Mr. Hamilton for his name, and Mr. Hamilton said Zuvaan. At 2:43 am PC Commission then asked Mr. Hamilton to exit the vehicle. He noted that something puffy was bulging in Mr. Hamilton’s coat. PC Commission thought it might have been a bottle of alcohol. He reached out to unzip Mr. Hamilton’s coat and immediately recognized the baseplate of a Glock handgun. He recognized the Glock logo on the weapon. He immediately shouted “gun” to inform his colleagues and took control of Mr. Hamilton. Once Mr. Hamilton was under control, he saw that it was a small handgun with an extended magazine. He unloaded the gun and made it safe by removing a round from the chamber. He secured the gun in his cruiser.

[8] PC Johal testified that she observed PC Commission pull down the zipper of the right rear passenger. PC Commission yelled “gun”. PC Commission and PC Duale then took control of him. In the meantime, she unholstered her firearm, ordered the other occupants of the vehicle out, and took control of them. Everyone was compliant. She released the females at the scene unconditionally at 3:35 am.

[9] In cross-examination, PC Commission testified that PC Duale was with him when he had Mr. Hamilton under control. It was suggested to him that Mr. Hamilton stated that he had a gun because: “he didn’t want you guys to shoot him? That he was scared you’d shoot him?” PC Commission stated that if Mr. Hamilton said that he did not hear it because he was so focused on the gun. He further testified in cross-examination that Mr. Hamilton was compliant and that he and PC Duale had no difficult controlling him.

[10] PC Khotsiphom testified that he heard someone yell “gun” and observed PC Commission and PC Duale holding onto Mr. Hamilton. PC Johal was directing the other people in the car on to the ground.

[11] Sgt Turpin testified that he was set up in his vehicle at the RIDE checkpoint to prevent vehicles from evading it. At 2:43 am he heard over the radio that a gun had been discovered. He observed PC Johal dealing with the take-down of the other individuals. He heard Mr. Hamilton saying that “he didn’t tell us he had a gun because he didn’t want us to shoot him.”

[12] PC Commission then tried to establish Mr. Hamilton’s identity. Mr. Hamilton identified himself verbally with a name, date of birth, and an address but PC Commission felt that Mr. Hamilton was evasive and not forthcoming. He then asked how Mr. Hamilton could confirm the information. Mr. Hamilton gave PC Commission his phone. Mr. Hamilton also told PC Commission the code so he could unlock it. PC Commission testified as follows:

A. I asked him, could he confirm. In my notes I have it as well, could he confirm his identity, because he gave me a verbal identity. And he said, "Yes, I can, my identification is on my phone. I can show you. I can give you my pass code and go into my phone, I will tell you the folder it's in." And at that point that's what I did because he was asking me to do that.

[13] In cross-examination, PC Commission agreed that he told Mr. Hamilton: “we need to confirm your identity, how can I confirm my identity?” He agreed that there were other checks that could have been run, and that his identity could have later been proven through fingerprints, if his prints were in the police system. He did not tell Mr. Hamilton that he did not have to confirm his identity at that point. It occurred before he gave Mr. Hamilton his rights to counsel.

[14] Mr. Hamilton showed PC Commission a photo of his health card, which confirmed his identity. In cross-examination, PC Commission testified that at traffic stops others had shown him their documents on their phones. He could not recall if others had done it during a criminal investigation. It was the first time that it had happened while the person was under arrest. He testified that it surprised him. He denied that he had any interest in getting into the contents of Mr. Hamilton’s phone. He also denied passing the pass code to other police officers. He testified that he never would have remembered it.

[15] At 2:54 am PC Commission informed Mr. Hamilton that he was under arrest for possession of a firearm. He then read him his rights to counsel from the laminated card he used. According to the transcript, the following exchange took place:

Q. And are you able to read what you read to Mr. Hamilton that particular night?

A. I can, yeah. I don't have it memorized verbatim, although I probably read it a number of times. I read to Mr. Hamilton. I read -- is it okay if I read it?

THE COURT: Yeah, go ahead. Yeah.

THE WITNESS: I read to him: "I am arresting you for possession of a firearm. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish and you have the right to free legal advice from a Legal Aid lawyer. If you are charged with an offence, you may apply for Ontario Legal Aid plan for assistance. 1-800-265-0451 is a number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice right now. Do you understand?" Is what I said that to him.

MS. KOCULA:

Q. And did you receive a response?

A. I did.

Q. And what was the response?

A. He -- I recall that he stated that he understood, but I'd like to refer to my notes for the exact--

THE COURT: Yeah, go ahead.

THE WITNESS: -- verbatim of what he said. I indicate in my notes that I say, "Do you understand?" And he indicates by nodding his head and saying "yeah".

MS. KOCULA:

Q. And after he says that, do you ask him any further questions?

A. I do. I ask him if he wishes to call a lawyer right now, and his answer was, well, "I don't know, I guess so." So at that point I tell Mr. Hamilton that I will put him in touch with a Legal Aid duty counsel lawyer as soon as I possibly can. And that point he responds by saying -- he says that's fine, he says that's okay.

Q. So once he provides that response, do you have any further conversation with him?

A. I continued to read him the -- from the card again I read him the secondary -- or, sorry, the caution. And basically I read again from the sheet and I say: "I am investigating a firearms offence. You are not obliged to say anything unless you wish to do so but whatever you say may be given in evidence." And, "Do you understand?" In my notes I indicate, "Do you understand?" He replies again, "Yeah".

[16] PC Commission testified that this exchanged happened at the rear of his police cruiser. He then took charge of the scene as PC Commission was the senior officer (aside from the shift sergeant). There were several other people under arrest to be dealt with. At 3:48 am PC Commission started driving back to the OPP detachment at Keele Street and Highway 401 with Mr. Hamilton in his scout car. He went straight there. He removed Mr. Hamilton from the vehicle at 4:03 am and took him to the booking hall to commence the booking process. The video of the booking was played in court. When the booking process was completed officers placed Mr. Hamilton in a cell at 4:20 am. At that point, PC Commission retrieved the firearm from the trunk of his cruiser and turned it over to a detective in the Criminal Investigation Branch.

[17] PC Commission testified that when he finished dealing with the detective he took Mr. Hamilton to the telephone booth and made a call to duty counsel for him. That occurred at 5:20 am. Mr. Hamilton was placed in the phone booth. The call was forwarded to the booth. After the call he advised PC Johal that he was satisfied with duty counsel’s advice.

[18] Sgt Turpin testified that five people were brought into the station, including Mr. Hamilton and Mr. Alexander. He stated that one female was under arrest and there were two other females. Given PC Johal’s evidence that she released the three females at the scene, either she or Sgt Turpin was mistaken, or there were unrelated females brought in. In the end, nothing turns on whether the females brought to the detachment were the females from the RIDE stop or other females. The salient point is that there were multiple individuals that had to be processed. Sgt. Turpin testified that he was involved in booking Mr. Hamlton, as well as another person from that group – obviously Mr. Alexander. He booked Mr. Hamilton first. In cross-examination, he described the setup at the station. There are three holding cells, and one booth for calls to be made to duty counsel. Although there was no policy limiting the number of people in the booking hall, Sgt. Turpin testified that for officer safety there could not be more than one arrestee present. It was too small and tight. The process at the detachment is that when multiple people were brought into the station, they generally waited in a police car until they could be brought into the station and booked.

[19] PC Commission explained why it took an hour for the call to be made:

Q. And now your evidence was that Mr. Hamilton was placed in the cell at 4:20 in the morning?

A. Yes.

Q. Why did it take an hour to call duty counsel?

A. As I was explaining -- as I was explaining, because I was the -- because I was the senior officer and I am the officer in charge of this particular case, there were -- there were things that I needed to do that were imperative, that would -- that could not wait. I had to turn over the evidence. I didn't want to walk around, I didn't want to leave the firearm any further without being turned over to the investigating -- to the crime investigator. I wanted to brief him so that he could proceed and know where to proceed with the investigation. The briefing that I give him was brief, Cole's Notes, for lack of a better term, in order to – to get him started on what he needed to do. I was giving direction to other officers that were in the detachment. This -- again this detachment is a traffic detachment predominantly. Not that we don't see or come across drugs or firearms, but more typically it's -- it's impaired investigations, it's Highway Traffic Act investigations, so the officers don't have as much experience with firearms and this type of investigation. So I was giving a lot of direction to the junior officers, to the younger officers, in terms of how to proceed, all the while trying to do the things that I needed to do for my part in the investigation. And it just took time.

[20] PC Commission did not facilitate the call to duty counsel while Mr. Hamilton was in the back of the police car waiting to be taken to the station. The police were simply not set up to provide him with a phone or the necessary privacy. As well, PC Commission deemed at the time that it was not like a simple driving offence. It was a firearm case and would have required PC Commission to uncuff Mr. Hamilton’s hands and let him use a phone, raising many safety issues.

[21] Mr. Hamilton testified that was the first time he had ever been pulled over in a RIDE stop It was the first time he had ever been investigated by the police. He was 19. The officer first spoke to the driver from the driver’s window. He then spoke to Mr. Hamilton. He asked Mr. Hamilton his first and last name. Other people in the car told him he did not have to answer. The officer then asked – while he was still at the driver’s window – what was between his legs and Mr. Hamilton responded that it was alcohol. The officer then walked over to Mr. Hamilton’s window and asked him to repeat his name. The officer said he could not hear and asked Mr. Hamilton to step outside the vehicle. He began to undo his jacked and the officer saw the gun and arrested him. He told the officer his first and last name and gave his address. He was then taken over to the police car. He said: “I didn’t tell them what I had as I was afraid they were going to shoot me.” The officer then came back and asked Mr. Hamilton how he was going to prove his identity. Mr. Hamilton thought that he had to prove who he was. He said that he did not have any identification on him. He told the officer that his identification might be on his phone but that his phone had been taken away from him. The officer said that they would have to go into the phone to prove who he was. The officer also said that he needed the passcode, which Mr. Hamilton provided verbally. He had his health card and birth certificate on the phone. The officer then came back and said that he proved who he was and gave him his rights to counsel.

[22] In cross-examination Mr. Hamilton agreed that when he stepped out of the vehicle the officer told him that he would be searched under the Liquor Licence Act. The officer asked him to unzip the jacket, but Mr. Hamilton told him to do it as he had something in there. He agreed that the gun was in the jacket, in an inside pocket. He testified that the officer asked for the passcode, which he provided verbally. He agreed that no officer questioned him about the gun or anything else until after he spoke to duty counsel.

ISSUES AND ANALYSIS

[23] Ms. Stanyon, on behalf of Mr. Hamilton, initially brought an application to exclude the gun from evidence at his trial on the basis of a violation of s. 8 of the Charter in relation to the search of Mr. Hamilton. In submissions she abandoned the application in relation to the search. Instead, she argued that there was a violation of s. 8 of the Charter when PC Commission searched Mr. Hamilton’s phone for his identification. She also argued that there was a violation of Mr. Hamilton’s right to counsel under s. 10(b) of the Charter. The pattern of violations amounted to a serious breach of Mr. Hamilton’s rights. She argues that admission of the evidence would bring the administration of justice into disrepute, even though there was no causal connection between the breach and the finding of the evidence: R. v. Rover, 2018 ONCA 745.

[24] In my view, there are five issues to be determined on this application:

(a) Did the police breach Mr. Hamilton’s rights under s. 10(b) of the Charter by asking him to confirm his identity? (b) Should Mr. Hamilton’s statement regarding his identification be excluded pursuant to s. 24(2) of the Charter? (c) Was the search of the phone for Mr. Hamilton’s identification a violation of his s. 8 Charter rights? (d) Did the police violate Mr. Hamilton’s rights under s. 10(b) of the Charter by delaying his call to duty counsel? (e) Should the evidence be excluded under s. 24(2) if there was a violation of s. 10(b)?

(a) Did the police breach Mr. Hamilton’s rights under s. 10(b) of the Charter by asking him to confirm his identity?

[25] Ms. Stanyon argues that by asking Mr. Hamilton how he was going to identify himself, and then obtaining Mr. Hamilton’s passcode without his consent prior to providing rights to counsel, the police violated Mr. Hamilton’s s. 10(b) rights. That violation tainted PC Commission’s subsequent search of the cell phone for Mr. Hamilton’s identification. Crown counsel conceded that by asking Mr. Hamilton how the police were going to identify him before giving him his right to counsel PC Commission violated Mr. Hamilton’s s. 10(b) rights: R. v. Singh, 2015 ONSC 6312; R. v. Suberu, 2009 SCC 33 at para. 38.

(b) Should Mr. Hamilton’s statement regarding his identification be excluded pursuant to s. 24(2) of the Charter?

[26] In my view, the answer is “no” because the breach was fundamentally not a serious one. This case is similar to R. v. Singh. The police were investigating a kidnapping. A van was found in the driveway of the house where the victim was held. The van was registered to one Gunalingam. The police went to Mr. Gunalingam’s apartment. After learning that he owned the house, the police arrested him. Before providing the caution, one of the officers asked him for identification. Mr. Gunalingam directed the to a pair of pants where he had his wallet. The police seized the pants and the wallet. The wallet contained inculpatory evidence. Mr. Gunalingam sought to exclude the seizure of the pants under s. 8. Coroza J. (as he then was) found that the pants were lawfully seized incident to arrest to identify the arrestee. The Crown conceded, however, that Mr. Gunalingam’s statement that his identification was in his pants violated s. 10(b) of the Charter because it came before he had been given his rights to counsel.

[27] In applying the three-part test under R. v. Grant, 2009 SCC 32, Coroza J. declined to exclude the evidence from the wallet. The breach was not serious. The statement was not designed to elicit a statement regarding the kidnapping; it flowed naturally from the arrest. There was no intention on the part of the officer to thwart Mr. Gunalingam’s rights. The impact on the Charter-protected interests of the accused was non-existent – Mr. Gunalingam would have acted the exact same way had he been given his s. 10(b) rights. He he was trying to cooperate with police as he was on bail. The question was prompted by a “completely natural and open-ended question from the police to confirm his identity”: R. v. Singh at para. 73. Finally, society’s interest in adjudication on the merits was high.

[28] I come to the same conclusion in this case: that the statement should not be excluded. The breach was not serious. PC Commission asked Mr. Hamilton how he was going to confirm his identity. He did not ask Mr. Hamilton anything about the offence or try to gather any kind of information from him other than his identity. As with R. v. Singh, it flowed naturally from the fast-moving investigation. It also occurred in a dynamic situation at roadside. PC Commission gave Mr. Hamilton his rights to counsel only a few moments later. I find that there was no attempt to thwart Mr. Hamilton’s rights, and that the mistake was an honest one – and completely understandable. It is a very fine and technical legal point that a person ought not to be asked their name until after they have their s. 10(b) rights. I doubt that any reasonable Canadian would think that a police officer who asked an arrestee their name before giving them their right to counsel would think that the police officer was doing something wrong – because, realistically, in these circumstances (acknowledging that there might be other circumstances where it is more serious) it is not wrong in any meaningful way.

[29] I also find that the impact on the Charter protected rights of Mr. Hamilton was virtually non-existent. The core protection of s. 10(b) of the Charter is the right against self-incrimination. In these circumstances, Mr. Hamilton’s name and identification was hardly incriminating. At some point he was going to have to identify himself. The police obtained no evidence or other information from Mr. Hamilton before they gave him his rights to counsel.

[30] Finally, Coroza J.’s view regarding society’s interest in R. v. Singh applies in exactly the same way to Mr. Hamilton: “I am satisfied that Mr. Gunalingam's statement was fully voluntary and was not coerced in any way. It was prompted by a completely natural and open-ended question from the police to confirm his identity.” The same applies here.

[31] I would not, therefore, exclude Mr. Hamilton’s statement regarding his passcode and the location of his identification on the phone.

(c) Was the search of the phone for Mr. Hamilton’s identification a violation of his s. 8 Charter rights?

[32] In my view, the answer is also “no”. If there was a Charter breach, it was a minor one. I say that for five reasons.

• First, Mr. Hamilton was in custody pursuant to a lawful detention, and the search of his jacket was lawful;
• Second, the seizure of the phone incident to arrest was lawful;
• Third, I find as a fact that Mr. Hamilton was not asked for the passcode, he volunteered it;
• Fourth, Mr. Hamilton’s name and identification is simply not evidence; and,
• Fifth, the search of the phone was a lawful search incident to arrest to identify the arrestee.

[33] Mr. Hamilton was in custody pursuant to a lawful arrest: Mr. Hamilton was not simply detained and asked for his identification. PC Commission had the authority to search Mr. Hamilton: Liquor Licence Act, s. 32(5); R. v. Bollers, 2017 ONSC 3243 at paras. 15-19. The nature of the investigation, and Mr. Hamilton’s jeopardy, changed when PC Commission discovered the gun in Mr. Hamilton’s coat but that did not render the search illegal. Mr. Hamilton was not stopped randomly and asked for his identification.

[34] The seizure of the phone incident to arrest was lawful: In R. v. Fearon, 2014 SCC 77, the Supreme Court clarified the law regarding searches of cell phones incident to arrest. The police seized a phone that was not password-protected. The Court found that a cursory search incidental to arrest was permitted and not a violation of s. 8 of the Charter. It is not clear if a cursory search might have revealed Mr. Hamilton’s health card, if the phone had not been password-protected, but it might have. In any event, if it is not a Charter violation to conduct a search of a cell phone incident to arrest, I cannot see how it is a Charter violation to simply look through the phone, at the direction of the arrestee, for a piece of identification that is in no way incriminating.

[35] As a factual matter I find that Mr. Hamilton offered up the passcode: Recall that PC Commission asked:

“We need to confirm your identity, how can I confirm your identity?”

[36] It was at that point that Mr. Hamilton volunteered that he may have had his identification on his phone. Mr. Hamilton also volunteered the passcode and told PC Commission where to find his identification. PC Commission testified that this had happened several times during roadside stops, although it was the first time it had happened during an arrest. PC Commission testified, and I accept his evidence, that he did not go through the contents of Mr. Hamilton’s phone to look for evidence. He simply verified Mr. Hamilton’s identity using his health card.

[37] PC Commission testified that he wrote down in his notes the following statement from Mr. Hamilton in response to the question of how he was to be identified: "Yes, I can, my identification is on my phone. I can show you. I can give you my pass code and go into my phone, I will tell you the folder it's in." In contrast, Mr. Hamilton testified that he thought he had to show the police his identification. As noted, he testified that the told the officer that his identification might be on his phone but that his phone had been taken away from him. The officer said that they would have to go into the phone to prove who he was. The officer also said that he needed the passcode.

[38] Ms. Stanyon argued that given the problems with note-taking and the officer’s credibility in this case, I should prefer the evidence of Mr. Hamilton on this point. I do not. In my view, PC Commission was a credible witness. There may have been problems with his notes, but the problems in this case are those common to all police officers reconstructing events after they have occurred when they make up their notes. The notes will not be perfect. There will be gaps and there will be things that perhaps should have been noted, and things that were noted that were unnecessary. That does not make the police officer’s evidence unreliable or incredible. If that were the standard, no evidence of any police officer could ever be relied on. The credibility and reliability of an officer is fact specific and case specific. In this case, I prefer the evidence of PC Commission to the evidence of Mr. Hamilton. I find that PC Commission’s evidence is more reliable. PC Commission was careful in his evidence and did his best to be responsive to Ms. Stanyon’s questions in cross-examination. Mr. Hamilton was recalling this conversation much later, without the benefit of contemporaneous notes. Of course, that will almost always be the case during an arrest, and in and of itself is not a good enough reason to prefer the evidence of the officer. Rather, I find that Mr. Hamilton volunteered his phone and volunteered the passcode because that is what makes the most sense in the context of the events. Mr. Hamilton said he thought he had to identify himself. It also makes sense because there is simply no evidence that PC Commission was using some kind of trick or subterfuge to do a general search for evidence. There is no basis to think that PC Commission had any idea that Mr. Hamilton might have had some form of identification on his phone unless Mr. Hamilton told him.

[39] In any event, once Mr. Hamilton volunteered the phone what was PC Commission supposed to do with the information? He obviously could have told Mr. Hamilton that he would not look at the phone until Mr. Hamilton had spoken to a lawyer, but it was a spontaneous, non-incriminating utterance in the context of a dynamic, roadside situation.

[40] R. v. Scott, 2022 ONSC 4496 provides an example where police will cross the line in obtaining a passcode. Scott arrived at Pearson Airport and Border Services Officers found multiple hard drives in his luggage. They suspected that he was transporting child pornography. The officers asked him for the password to his devices, which he provided. He was not arrested when the officers asked him for his password, but he was under detention. Scott was never told that he did not have to provide his password. The officers violated his s. 10(b) rights by failing to provide him with his rights to counsel prior to asking him for his password. The officers – unlike PC Commission – were specifically looking for incriminating evidence. Harris J. declined to exclude the evidence of the child pornography under s. 24(2) of the Charter.

[41] This case can obviously be distinguished from R. v. Scott. Although Mr. Hamilton was under arrest and the police were required to give him his s. 10(b) rights, they did not ask for his password. PC Commission did not intend to search the phone for evidence – unlike the officers in R. v. Scott. He was only looking for a piece of identification.

[42] Mr. Hamilton’s name and identification is simply not evidence: It is obviously true that the police must refrain from taking steps to elicit evidence from a detainee until the right to counsel has been implemented: R. v. Prosper, [1994] 3 S.C.R. 236 at para. 35; R. v. Taylor, 2014 SCC 50 at para. 26. Answers to police questions may or may not give rise to a breach of s. 8 of the Charter. Whether or not there has been a breach is a fact-specific inquiry: R. v. Harris, 2007 ONCA 574 at para. 34. This case is the opposite of Harris. In Harris the accused was a passenger in a car that was stopped to investigate the driver for a Highway Traffic Act violation. Harris, a passenger, was lawfully detained in the sense that the investigation of the driver was legitimate, and he was not free to leave. The police officer asked Harris for his identification. The only reason to obtain the identification was to run it through the databases and see if Harris was under any bail orders or other court orders. Doherty J.A. found that the only reason to ask Harris for identification under those circumstances was precisely to obtain incriminating information. In this case, Mr. Hamilton was already under arrest when PC Commission asked him for his name. PC Commission was unable to find Mr. Hamilton in any databases that he could access from his police car. That is why he asked Mr. Hamilton for identification. PC Commission readily agreed in cross-examination that there were no exigent circumstances and that he could have run more extensive checks at the station. In my view, however, it is irrelevant where the checks were conducted. Unlike in Harris, his name was not incriminating.

[43] The search of the phone was a lawful search incident to arrest to identify the arrestee. Although appellate courts have declined to rule on the point (Kosoian c. Société de transport de Montréal, 2019 SCC 59 at para. 100, R. v. Sureskumar, 2023 ONCA 705 at paras. 13-14) there is considerable trial-level authority that a search incident to arrest for the purposes of identification is lawful. In R. v. Nunnery Dambrot J. stated:

I have no doubt that a search for identification where the person under arrest does not identify himself or herself, or even to confirm an identification that has been given, is related to the objectives of the proper administration of justice, and amounts to a valid objective for a search incident to arrest, whether or not it is properly classified as a search for evidence.

[44] See also: R. v. Singh at para. 35; R. v. Glasgow-Olivery, 2022 ONCJ 72; R. v. Kwarteng, 2023 ONCJ 398.

[45] In Nunnery, Dambrot J. also made the point that:

… it would be anomolous if police officers who are generally empowered to make warrantless arrests even for summary conviction offences and provincial offences where an arrest is necessary in order to identify the person arrested (see s.48 of the Liquor License Act, and, similarly, s.495(2)(b) of the Criminal Code, and see R. v. Moore, 43 C.C.C. (2d) 83 (S.C.C.)) were not then authorized to fulfil the very purpose of such arrests by searching persons arrested on this basis for identification.

[46] I agree with Dambrot J.’s statement and would go further. In my view the power is implicit in s. 498(1.1) of the Criminal Code. A police officer who has made a warrantless arrest may decide to release a person at the scene: Criminal Code, s. 498(1). The officer may wish to determine if the arrestee has other charges or warrants, since the officer has discretion to release as long as the offence is not a reverse onus (such as drug trafficking) or a s. 469 offence, such as murder. The police officer may issue an appearance notice or undertaking but that document must include the arrestee’s name, date of birth, and contact information: Criminal Code, s. 500(1)(a), s. 501(1)(a). If an officer cannot ascertain the identity of the person, the officer has no discretion to release them as as s. 498(1.1)(a)(i) of the Criminal Code makes clear:

498 (1.1) The peace officer shall not release the person if the peace officer believes, on reasonable grounds,

(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to

(i) establish the identity of the person…

[47] There is no question that the police have the right to conduct a safety search when a person is going into custody. There is also no question that the police may do things such as take fingerprints and photographs to establish an arrestee’s identity. It would be absurd if the police were required to detain someone to identify them, were permitted to take fingerprints and photographs, but could not conduct a search incidental to arrest for the purposes of identification.

[48] At para. 13 of R. v. Sureskumar the Court of Appeal noted the findings of this Court in R. v. Nunnery and R. v. Singh but did not determine the point. In my respectful view, and in the absence of any appellate authority to the contrary, R. v. Nunnery and R. v. Singh are good law from respected judges (one of whom now sits on he Court of Appeal), and I would follow those cases. I find that the search of the phone was a search incidental to arrest to identify Mr. Hamilton.

[49] I thus find no breach of s. 8 of the Charter.

[50] That leaves one further issue, that of whether PC Commission provided the passcode to other officers so that they could search Mr. Hamilton’s phone.

[51] Ms. Stanyon had the following exchange with PC Commission:

Q. Okay. But whether you wrote it down or not, I'm going to suggest to you that you provided that pass code to other police officers. Fair?

A. No.

Q. Okay. Do you have any idea how the pass code came to be provided to Detective Constable Easterbrook with the Peterborough police so that he could review Mr. Hamilton's cell phone for his own purposes ten days after this arrest?

A. No.

Q. Okay. You're certain it wasn't you that provided the pass code?

A. I don't recall that, no.

Q. Is it possible it might have been you who provided the pass code to D.C. Easterbrook?

A. No, I would never have remembered it.

[52] Ms. Stanyon and PC Commission then had this exchange:

Q. So are you aware, Officer, that the pass code makes its way to Peterborough police officers, specifically D.C. Easterbrook, ten days after Mr. Hamilton's arrest?

A. I'm not aware of that, no.

Q. Okay. So you're certain it wouldn't have been you that provided the pass code?

A. I don't -- no, because I got the pass code, like I said, at the scene.

Q. Okay.

A. I didn't write it down. We looked at his phone, and I closed the phone, or Duale turned the phone or I turned the phone off.

Q. And I'm going to suggest to you that whether or not you wrote it down, you gave that pass code to other officers.

A. No, I did not.

Q. Because there's no other way that D.C. Easterbrook, another police officer, would receive that pass code.

A. I have no idea.

[53] I should point out that at that when he arrested and booked Mr. Hamilton, PC Commission appears to have had no idea that there might have been a Peterborough Police investigation involving Mr. Hamilton. Indeed, there is no positive evidence before this Court that there was a Peterborough Police investigation. It was simply a suggestion made to the officer, which he did not adopt.

(d) Did the police violate Mr. Hamilton’s rights under s. 10(b) of the Charter?

[54] Ms. Stanyon conceded that the delay at the roadside of 54 minutes – while not ideal – was not unreasonable. She argues, however, that the delays at the station amounting to more than another full hour – the total delay being 2 hours and 27 minutes – were unreasonable. PC Commission, she argues, did not take any pro-active steps to give Mr. Hamilton his call to duty counsel. He did not properly turn his mind to facilitating the right to counsel and prioritized other things. For example, the firearm was secure in PC Commission’s vehicle but before facilitating the call PC Commission took the firearm to the criminal investigator and briefed him. Ms. Stanyon also argued that the practice at the OPP detachment of only bringing in one arrestee at a time to the booking hall created unnecessary and systematic delay. All of these things contributed to lengthening the period of time that it took to facilitate Mr. Hamilton’s call to duty counsel.

[55] Ms. Kenyon’s argument is, in some ways, summed up in questions she posed to Sgt Turpin:

Q. Okay. So you're not aware of any thought that's been given at the detachment to ensuring individuals can promptly speak to counsel after being lodged.

A. As soon as practicable.

Q. Okay. And what I'm going to suggest to you is that you have options within there as soon as practicable like, for example, delaying other individuals to be paraded and ensuring the counsel call is made before moving on to the next arrestee. Correct?

A. Well, you can interpret -- you can say what you'd like, then you'd be delaying the other person waiting in the police car.

Q. Yes. And I'm suggesting delaying the parading of a second person to facilitate the counsel call of the first is more Charter compliant than just parading everyone and delaying R.T.C. or delaying the counsel call rather, sorry.

A. I guess -- I know what you're saying, but like I said, just because you're still parading the individual doesn't mean that it stops at the next – when that guy is lodged, that individual is lodged, it doesn't mean that officer in charge can't go and call counsel.

[56] With respect, I cannot agree that the police violated Mr. Hamilton’s s. 10(b) rights. They did not fail on the implementational aspect of the right to counsel.

[57] The police have a duty to provide the detainee with a reasonable opportunity to retain and instruct counsel: R. v. Suberu, 2009 SCC 33, at para. 38. The burden is on the Crown to show that a given delay is reasonable in the circumstances: R. v. Taylor, 2014 SCC 50 at para. 24.

[58] Ms. Stanyon pointed to R. v. Lee and Cooney (2023), 526 C.R.R. (2d) 25, 2023 ONSC 1332 as an example of violations of s. 10(b) of the Charter. Lee and Cooney were arrested in a vehicle with two kilograms of crystal methamphetamine. It took 20 minutes to advise Cooney of his right to counsel. There was some confusion by the police as to who should have provided those rights. That did not justify the 20-minute delay. The Crown conceded the breach. The Crown also conceded that there was a breach of s. 10(b) at the station. It took 36 minutes, while Cooney was lodged in a cell, before the police facilitated his call to counsel. In the specific circumstances of the case, Nakatsuru J. accepted that other alleged delays – such as waiting for a scout car to transport Cooney, and then waiting in the sally port while others were booked – were reasonable. Given the other delays, the delay of 36 minutes in the cell was unreasonable. The police took no steps taken to contact Lee’s counsel for 1 hour and 50 minutes, which the Crown conceded was also unreasonable. Nakatsuru J. nonetheless did not exclude the evidence.

[59] In R. v. Noel, 2019 ONCA 860, the accused was advised of his right to counsel within five minutes of the arrest but it appears that the police did not actually facilitate a call to counsel. As well, the accused gave the police an incriminating statement before he was given his rights to counsel. The trial judge did not rely on that statement in convicting the accused. The Court of Appeal found several errors in the trial judge’s analysis under s. 24(2) of the Charter. The trial judge found that the breach of the accused’s rights had been “somewhat attenuated” because the police made no further attempts to elicit evidence prior to the implementation of the right to counsel. According to the court that was an error because the seriousness of the breach cannot be attenuated simply because the police fail to commit further breaches – but the Court (composed of a different panel at a later point) made a different finding regarding attenuation in R. v. Desilva, 2022 ONCA 879 at para. 99. Perhaps more seriously, there was no evidence that the accused ever actually did speak to counsel. The trial judge found that the police were careless. The Court of Appeal, however, went further, and stated that the police had:

… a somewhat cavalier attitude about a fundamental, important, and long-settled Charter right to consult counsel without delay. Indeed, the trial judge characterized the police conduct in this regard as demonstrating "carelessness" — a characterization with which the Crown does not take issue.

Moreover, the impact of the breach was significant, not neutral. Mr. Noel remained in custody without the benefit of counsel for at least three hours, unable to receive the direction, reassurance, and advice that counsel could provide.

[60] Respectfully, I find Lee and Noel to be distinguishable. The police did not act unreasonably in this case. I will focus on the events after the police transported Mr. Hamilton to the station, as counsel has conceded that the delay at the scene was not unreasonable. The timeline of events is helpful here:

• 1:59 am: PC Commission arrives at the RIDE checkpoint.
• 2:38 am: The vehicle with Mr. Hamilton in it approaches the RIDE checkpoint. PC Commission flags it down and engages the driver in a conversation.
• 2:43 am: PC Commission asks Mr. Hamilton to step outside the car. PC Commission subsequently searches Mr. Hamilton and finds a handgun.
• 2:44 am: PC Commission arrests Mr. Hamilton for possession of a weapon.
• 2:54 am: PC Commission reads Mr. Hamilton his rights to counsel and cautions him. Mr. Hamilton indicates that he would like to speak to duty counsel.
• 3:48 am: PC Commission drives Mr. Hamilton to the OPP detachment.
• 4:03 am: PC Commission and Mr. Hamilton arrive at the OPP detachment. PC Commission takes Mr. Hamilton from his cruiser and into the booking hall.
• 4:20 am: The booking process is completed. Mr. Hamilton is placed in a holding cell.
• 4:46 am: Call facilitated to Mr. Alexander’s lawyer. There is no answer. PC Johal makes four calls to counsel on behalf of Mr. Alexander.
• 5:20 am: Mr. Hamilton removed from his cell and brought to the phone booth in the booking area. Call to duty counsel facilitated; Mr. Hamilton speaks to duty counsel.

[61] The key period was from 4:03 am, when Mr. Hamilton arrived at the OPP detachment, to 5:20 am, when the call was facilitated, a total of 1 hour and 27 minutes. The problematic period, however, was hour from 4:20 am to 5:20 am while Mr. Hamilton was lodged in a cell. That is the period that must be evaluated to determine if it was reasonable in the circumstances.

[62] What is clear from the testimony of the officers is that the OPP traffic detachment is small, and, as PC Commission testified, is used to handling individuals – people who, usually, have been convicted of impaired driving or some other driving offence. The officers staffing the detachment that evening were relatively junior. They had little experience with firearms investigations. Moreover, the police had to book in five people, including Mr. Hamilton. I accept the evidence that the booking hall is small and tight and for officer safety detainees must be brought in one at a time. The booking process also appears to have tied up officers. I have viewed the booking video and I agree that he area is small. Respectfully, I don’t think the police should be second-guessed as to how they handle the booking unless there is an institutional problem that results in a systematic violation of Charter rights. I accept that it was reasonable to bring the detainees in one at a time. I also do not accept that it was unreasonable that Mr. Alexander received his call before Mr. Hamilton. There was only one booth at the detachment. To some degree, it was arbitrary who got to use it first. PC Johal had to make a call to Mr. Alexander’s counsel, who did not pick up. She also facilitated four more calls on behalf of Mr. Alexander. It is not unreasonable that the police simply brought Mr. Alexander to the booth before Mr. Hamilton, and it was obviously not foreseeable that PC Johal would have had to have made 4 calls for Mr. Alexander. I find that letting Mr. Alexander make his call first was not unreasonable.

[63] I also accept PC Commission’s evidence that there were other aspects of the investigation that had to be facilitated. I found PC Commission to be a credible witness. He may have been confused on some points, but to be fair to him, some of the questions he was asked were confusing. In my observation, he was trying to answer them as best he could. Turning to the time at the station, although PC Commission’s evidence was that his vehicle was secure with the firearm in it, it is understandable that he wanted to get it to the criminal investigators as quickly as possible. It was a firearm with live ammunition. While obviously not perishable, it was also a potential danger to officers and detainees. As he put it, he gave the detective a “Coles Notes” version of what happened – something that he would have had to have done when he turned over the firearm at some point. I find that this decision did not appreciably add to the amount of time Mr. Hamilton had to wait for his call.

[64] I appreciate that in some circumstances a delay of one hour can be unreasonable: R. v. Kashavarz, 2022 ONCA 312 at para. 95. The real problems at the station were all situational. The detachment was not set up to receive multiple persons in custody; it was primarily a traffic detachment. For reasons that seem sensible to me, the police could not have more than one detainee in the booking room. There were only three holding cells and only one phone booth. None of the things that happened at the station amounted to a systematic violation of Mr. Hamilton’s rights.

[65] Respectfully, that is why this case is distinguishable from Noel and Lee. In Noel, the police did not facilitate the call to counsel, or even turn their mind to it, a most serious violation. The delays in Lee and Cooney were generally longer in this case – for example the 1 hour and 50 minutes Cooney waited in his cell – but more importantly there was no actual justification for the delays. In my view, that also distinguishes this case.

(e) Should the evidence be excluded under s. 24(2)?

[66] I find that it is not necessary to engage in the s. 24(2) analysis. That said, and very briefly, even if I were wrong about the delay at the station, I would not exclude the evidence, as the Grant factors do not favour exclusion: R. v. Grant, 2009 SCC 32.

[67] Turning first to the seriousness of the breach: the time period of 1 hour, while not ideal, was also not egregious. Moreover, there was no evidence of a cavalier approach to Mr. Hamilton’s rights. It was not part of a systemic violation of his rights: R. v. Desilva, 2022 ONCA 879, supra, at para. 93. It was a delay that was explained by the police, and, in my respectful view, those explanations were reasonable: see R. v. Keshavarz, 2022 ONCA 312, supra, at para. 107.

[68] Turning next to the impact on the Charter-protected interests of the accused: any delay in implementing the right to counsel obviously impacts on the Charter-protected interests of a detainee. In this case, however, I find that the impact was minimal. There was no causal connection between the breach and the discovery of the evidence. There was no incriminating evidence obtained from Mr. Hamilton. There was no interference with any other Charter right: R. v. Keshavarz, 2022 ONCA 312, supra, at paras. 113-116; R. v. Desilva, 2022 ONCA 879, supra, at paras. 97-98.

[69] Finally, turning to society’s adjudication on the merits: Obviously there is a very high societal interest in ensuring that gun cases are dealt with on their merits, especially in the Greater Toronto Area. Handguns are a plague in this city – numerous cases from this court, the Ontario Court of Justice, and the Ontario Court of Appeal have made that point. See, for example, R. v. Nur, 2013 ONCA 677; Appeal dismissed, R. v. Nur, 2015 SCC 15. These are dangerous weapons. In a busy city, with many innocent bystanders around, they are possibly the most dangerous weapons. Society has a very strong interest in ensuring that offenders are properly dealt with. As Doherty J.A. said in Nur at para. 206:

Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation.

[70] See also R. v. Keshavarz, 2022 ONCA 312, supra, at para. 118.

[71] I appreciate that this statement was made in the context of the constitutionality of mandatory minimums, and a discussion of the proper range of sentence. Nonetheless, it certainly expresses a view of society’s interest in the adjudication of gun cases on the merits.

[72] Had I found a breach, therefore, I would not have excluded the evidence.

R.F. Goldstein J. Released: April 26, 2024