Court File and Parties
COURT FILE NO.: CR-22-50000535
DATE: 20240530
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
GABRIELA BELSITO AND PHILLIP NKRUMAH
Counsel: Michael Wilson and Alice Bradstreet, for the Crown Mary Cremer for Gabriela Belsito and Nicole DeBellefeuille for Phillip Nkrumah
HEARD at Toronto: March 25, 26, 27, 28 and April 2, 2024
J. K. Penman J.
OVERVIEW
[1] Gabriela Belsito and Phillip Nkrumah were jointly charged on September 9, 2021, with possession for the purpose of trafficking cocaine and possession of proceeds of crime. Mr. Nkrumah was also charged with firearm-related offences in relation to multiple firearms and ammunition found as a result of the search of a vehicle. It is the firearms charges that are the subject of this application.
[2] Toronto Police were investigating Gabriela Belsito in relation to her alleged participation in a robbery. On September 9, 2021, police executed a search warrant on her residence at Unit 207-198 Pinegrove Road in Woodbridge. Gabriela Belsito, her sister Michelle Belsito, and Mr. Nkrumah were in the residence at the time the warrant was executed. During the search cocaine and money were discovered in the master bedroom. Additional cocaine was found in the washing machine found on the same floor. All three parties were arrested for the drugs and money.
[3] During the search of the upstairs, Officer O’Toole located a grey sweatshirt hanging on the closet door in the master bedroom. In the pocket of the sweatshirt were a set of keys, including keys for two vehicles. After completing the search, Officer O’Toole attended the main floor and engaged Mr. Nkrumah in “small talk”. Mr. Nkrumah asked for a black sweatshirt from upstairs. Officer O’Toole brought Mr. Nkrumah the grey sweatshirt and asked about the keys which Mr. Nkrumah confirmed belonged to him.
[4] The keys from the master bedroom were ultimately seized, and officers attended the parking area to locate the vehicles associated to the keys. Those keys led them to a Dodge Journey which was found in the underground parking, and a Dodge Ram in the visitors’ parking. Both vehicles were seized. Search warrants were granted the next day for both the Dodge Journey and the Dodge Ram. Nothing of note was found in the Dodge Ram other than a black box which was left in the vehicle at that time. Officers located multiple firearms and ammunition in the Dodge Journey. Additional searches were done of both the Dodge Journey and the Dodge Ram.
[5] Mr. Nkrumah applied pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms to exclude his utterances and the firearms and ammunition found in the Dodge Journey. Mr. Nkrumah argued that his s. 10(b) Charter rights were violated when the police failed to provide him his rights to counsel and did not hold off questioning him. Counsel for Mr. Nkrumah argued this was aggravated by Mr. Nkrumah never having been provided with a caution, thus rendering the statements involuntary. Mr. Nkrumah also argued that the seizure of the keys and vehicles without a warrant and the subsequent search of the vehicles were unlawful and a violation of his s. 8 Charter rights.
[6] The Crown took the position that Mr. Nkrumah was provided with rights to counsel but acknowledged there was a breach when Mr. Nkrumah was provided with his rights as part of “group” rights to counsel. Counsel for Mr. Nkrumah argued, however, that the police did have an objectively reasonable belief that the keys and subsequently the vehicles would afford evidence of drug trafficking. The search warrants for the two Dodge vehicles were pursuant to judicial authorization and even with certain excisions, the warrants could have issued. While the Crown acknowledged serious concerns with the returns to justice, there was no violation of Mr. Nkrumah’s s. 8 rights as a result. On a s. 24(2) analysis, the Crown argued that the evidence should not be excluded.
[7] Ms. Belsito was only facing charges with respect to the drugs and cash and did not take part in this application. This application and trial, however, proceeded as a blended hearing. I provided bottom-line reasons on April 3, 2024, granting Mr. Nkrumah’s Charter application. Mr. Nkrumah then entered pleas of guilt to the charges relating to the drugs and cash. These are my reasons granting the application to exclude the evidence of the firearms.
[8] This is a case where, from start to finish, the police exhibited a disconcerting level of carelessness, inattention to detail and a cavalier attitude toward their duties and Charter rights. This conduct was consistent among the officers and permeated the entire investigation. This was aggravated by two officers misleading the court as to what took place.
SECTION 10(b)
Did the police violate Mr. Nkrumah’s rights to counsel?
[9] It is well established that the right to consult counsel without delay exists because those who are arrested or detained are apt to require immediate legal advice that they cannot access without help because of the detention: R. v. Noel, 2019 ONCA 860; R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135; and R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460. The law around s. 10(b) and the obligation it imposes is clear and well established. “It is not difficult for the police to understand their obligations and carry them out”: Noel, at para. 34.
[10] Counsel for Mr. Nkrumah argued that when considering all the evidence, Mr. Nkrumah was not provided with his rights to counsel when he was arrested for the drugs and cash. While he was eventually provided with his rights to counsel at the station, he was never advised of his rights to counsel while at the scene. They also argue that Officer Newmarch lied to the court when he claimed that Mr. Nkrumah had been provided with his rights to counsel.
[11] When the police entered the unit to execute the search warrant, Officer Burns initially provided Mr. Nkrumah with his rights to counsel when he was detained pending the outcome of the warrant. Mr. Nkrumah at that point indicated he did not wish to speak with counsel. Officer Burns testified that he did not provide Mr. Nkrumah with a caution because he was not being charged with anything. He also told Mr. Nkrumah that he would be free to go once the search was finished, assuming nothing was found.
[12] When the drugs and cash were located, Officer Newmarch, an officer of 22 years’ experience, testified that he attended the main floor and told the three occupants, including Gabriela Belsito, that they were under arrest for the drugs and the cash. Officer Newmarch testified that he provided “group” rights to counsel and that as a “group” they indicated they understood. It is not clear what that is supposed to have meant. He did not specifically inquire of Mr. Nkrumah whether he wished to speak with counsel. The body-worn camera (“BWC”) footage of Officer Loughlin makes clear that at the time Officer Newmarch claims he was providing rights to counsel to all three parties, Gabriela Belsito had already been removed from the residence.
[13] Officer Newmarch had no notes of providing rights to counsel, and only drafted a will say to this effect a few days before trial. He had testified at the preliminary hearing and had not recalled providing rights to counsel. It was only when it was pointed out to him shortly before trial that he drafted the will say.
[14] Even if I were to accept the evidence of Officer Newmarch, at its highest, Mr. Nkrumah was provided with rights to counsel as part of a “group”, without any effort to ensure he understood, or any inquiry as to whether he wished to speak with counsel. The Crown concedes this constitutes a s. 10(b) breach.
[15] I do not accept, however, that Mr. Nkrumah was ever provided with his rights to counsel by Officer Newmarch while at the scene. First, “group” rights to counsel are unheard of and highly unlikely. The officer’s recollection that Gabriela Belsito was present for these “group” rights is incorrect and undermines Officer Newmarch’s recollection that this ever took place. Officer Newmarch had no notation or recollection of ever providing rights to counsel to Mr. Nkrumah until a few days before trial. Detective Hamilton, who was present at the time, had no note or recollection of Officer Newmarch providing rights to counsel. Finally, Mr. Nkrumah’s statements to Officer Donais over an hour and a half later asking if he would be able to speak with counsel is additional support for the suggestion that Mr. Nkrumah was never provided with his rights to counsel.
[16] As a result, I find that Officer Newmarch misled the court about having provided Mr. Nkrumah with his rights to counsel. Not only does this demonstrate an indifferent attitude to Charter rights, but coming to court and lying only serves to undermine the truth-seeking function of the trial process. This is egregious conduct that cannot be condoned.
[17] Mr. Nkrumah was not provided with his rights to counsel when the drugs and cash were found, and Officer Newmarch misled the court about having done so. This constitutes a serious violation of Mr. Nkrumah’s s. 10(b) Charter rights.
Did the police violate Mr. Nkrumah’s s. 10(b) rights by not “holding off” questioning him?
[18] Mr. Nkrumah argued that the police further violated his s. 10(b) rights when they did not “hold off” questioning him until he had a reasonable opportunity to consult counsel. The law is clear that s. 10(b) of the Charter obliges police to hold off from attempting to elicit incriminatory information from a detainee until he or she has had a reasonable opportunity to consult counsel or has unequivocally waived the right to do so: Suberu, at paras. 38, 41; R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, at p. 269. This also prevents police from interacting with an accused person, short of questioning, “in a manner that triggers a response from the accused – i.e., something that is a ‘functional equivalent’ of an interrogation”: see R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at paras. 71, 73.
[19] In Pileggi, the officer read the search warrant to the accused to make sure he understood. The appellant responded that his wife “had nothing to do with it”. In response to that comment, the officer then followed up with a question about “whether he would like to tell them where anything was, to which the appellant responded ‘no.’” Trotter J.A. characterized the reading of the search warrant as entering “dangerous territory” but did not decide the issue of whether that constituted the police attempting to elicit evidence; rather, he found that the follow-up question by the officer did amount to the officer seeking incriminating evidence: at para. 72.
[20] After the drugs and cash had been located, Officer O’Toole, an officer of 16 years’ experience, continued to search the upstairs. In the room where the drugs and cash were found, he located a grey sweatshirt hanging on the closet door with keys in the pocket. The keys were of no significance to him, so he left them on the dresser. He then attended the main floor of the residence and engaged in “small talk” with Mr. Nkrumah, who was sitting on a chair in handcuffs. Officer O’Toole did not inquire whether Mr. Nkrumah had been provided with his rights to counsel or whether he had asked to speak with counsel.
[21] Officer O’Toole’s evidence was that during the “small talk”, Mr. Nkrumah asked if clothing could be obtained for him because it was going to be cold in jail. Officer O’Toole asked Mr. Nkrumah whether the keys from the grey sweatshirt belonged to him. Officer O’Toole testified that Mr. Nkrumah confirmed the keys were his, although he did not have complete notes and was unsure exactly what was said by Mr. Nkrumah.
[22] When Officer O’Toole did his notes the day after the event, he wrote that Mr. Nkrumah had asked for a “grey sweatshirt”. When confronted with the exit video, he acknowledged that Mr. Nkrumah had in fact asked for a black not grey sweatshirt. Officer O’Toole then agreed the sweatshirt Mr. Nkrumah asked for was not the one in which the keys were found.
[23] Officer O’Toole testified that at the time there was no purpose to the questions about Mr. Nkrumah’s ownership of the sweatshirt or keys. While this may be so, these were dangerous questions to ask and ultimately provided the foundation for Officer O’Toole’s belief that the keys and sweatshirt belonged to Mr. Nkrumah. Officer O’Toole was a senior officer who would have been live to the issue of possession, and to whom the drugs belonged. It would have been of interest to the police if Mr. Nkrumah had belongings in the home, and specifically in the bedroom where the drugs were found.
[24] In addition, Officer O’Toole had difficulty recalling the conversation, had not taken timely or accurate notes, and drafted a further will say after the fact which was also inaccurate. The discrepancy with respect to the conversation about the sweatshirt and keys is concerning when considering the importance of the keys to the investigation. Whether this was a product of carelessness or intentional misrepresentation is not clear, but the discrepancy is serious.
[25] I have already found that Mr. Nkrumah was not provided with his rights to counsel while at the scene. I am also satisfied that the questions about the keys were not just dangerous ones but an attempt to elicit evidence. Officer O’Toole’s conduct demonstrated a reckless and cavalier attitude with respect to Mr. Nkrumah’s s. 10(b) Charter rights. This conduct aggravates the seriousness of the s. 10(b) violations.
[26] Detective Hamilton was present when Officer O’Toole came downstairs and in chief testified that Officer O’Toole had both the sweatshirt and the keys in his hands. It is at this point, according to Detective Hamilton, that Mr. Nkrumah confirms the keys belonged to him. The problem with this evidence is the footage, which shows Officer O’Toole giving the black sweatshirt to Mr. Nkrumah with no mention of keys. In addition, the video shows the keys were still upstairs in the bedroom at the time. When confronted with this video, Detective Hamilton backtracked and agreed that Mr. Nkrumah did not confirm that the sweatshirt nor keys belonged to him. He then attempted to claim that he might have been referring to a different set of keys, although no other set of keys was found in the residence. In addition, Officer O’Toole testified that he never showed the keys to Mr. Nkrumah to confirm whether they were his or not.
[27] Detective Hamilton’s original version of events did not happen. Detective Hamilton’s evidence was disingenuous, and I find it was an attempt to create a connection between the keys and Mr. Nkrumah. Detective Hamilton’s attempt to mislead the court with respect to Mr. Nkrumah’s ownership of the keys aggravates both the s. 10(b) and the additional s. 8 breaches, which will be outlined below.
[28] I am satisfied that there were two serious breaches of Mr. Nkrumah’s s. 10(b) Charter rights, that involved misconduct of three separate officers. These violations alone are, therefore, very significant.
Voluntariness
[29] While I have found that the statements by Mr. Nkrumah were in violation of his s. 10(b) Charter rights, I also find that the statements were not voluntary.
[30] A confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to its voluntariness: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3. The analysis must be a contextual one considering the issues of threats, oppression, the operating mind doctrine, and police trickery. A trial judge must determine whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority: R. v. Tessier, 2022 SCC 35, at para. 68.
[31] The Supreme Court has emphasized that there is a “strong undercurrent” of fairness to the accused in the criminal process as part of the confessions rule: R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, at para. 30. A confession may be excluded as involuntary “because it was unfairly obtained and ran afoul of the principle against self-incrimination and the right to silence, whatever the context indicates”: Tessier, at para. 70.
[32] The Supreme Court recently affirmed the importance of the caution in answering the question of voluntariness. As stated in Tessier, “The absence of a caution weighs heavily because, where unaddressed, it represents prima facie evidence that the suspect has been unfairly denied their choice to speak to the police and that, as a consequence, the statement cannot be considered voluntary”: at para. 11; see also R. v. Beaver, 2022 SCC 54.
[33] The court must examine the voluntariness issue contextually. Mr. Nkrumah was detained and not cautioned with respect to a search warrant. Once he was placed under arrest for the drugs and cash upstairs, he was still not cautioned. He was asked questions about clothing and keys found in the same room as the drugs and cash. He was not aware that those questions and answers could at some point become relevant or important to the issue of possession of the drugs and cash. It is that context that surrounds the exchange about the sweatshirt and pants that the Crown seeks to introduce.
[34] Counsel for Mr. Nkrumah argued that the lack of a proper record as to exactly what was said is also a concern. The Crown acknowledged this issue but argued that given there is no issue that Mr. Nkrumah did ask for clothing, the specifics of that conversation are not relevant. The Crown also took the position that although there was no caution, it was of no consequence when looking at Mr. Nkrumah’s interactions with the police.
[35] Mr. Nkrumah was under arrest, not provided his rights to counsel, and not cautioned. Officers engaged in “small talk” with him that led to them eliciting evidence from him on issues relevant to criminal liability, for which there is not an accurate record.: see R. v. Moore-McFarlane 2001 CanLII 6363 (ON CA), 2001 CarswellOnt 4242 (Ont.C.A) at para 65-67; R. v. Ahmed 2002 CanLII 695 (ON CA), 2002 CarswellOnt 4075 (Ont.C.A.). Using a contextual analysis, in these circumstances the lack of a caution denied Mr. Nkrumah his choice as to whether to speak with the police.
SECTION 8
[36] There are several seizures and searches at issue in this application.
i. The seizure of the key ring that contained the keys to the Dodge Journey and the Dodge Ram, and the subsequent seizing of those two vehicles.
ii. The two searches of the Dodge Journey and the Dodge Ram.
iii. The Returns to Justice for the Pinegrove apartment and the Dodge Journey and its contents.
iv. The seizure of the black box/tracker.
[37] These series of searches begin with the warrant to search 198 Pinegrove Rd. for evidence in relation to Gabriela Belsito and an unrelated robbery. Although this search is not an issue in this application, aspects of how the officers conducted themselves during the search is indicative of their overall conduct in this case.
[38] All the officers testified that at the briefing prior to the search they reviewed the warrant and its Appendix A. The search warrant authorized the officers to search for, among other things, grey hoodies with logos and black running shoes. Notwithstanding this, none of the officers paid attention to or seized any of the clothing that was found in the residence, including grey hoodies and black running shoes. Either the officers did not review the warrant and Appendix A and misled the court about doing so, or they paid very little attention to what they were reading, and just searched the residence without any thought as to what the warrant authorized.
[39] The warrant authorized a search of Unit 207-198 Pinegrove Rd. It is clear on the entry video that the unit that was searched was Unit 7-198 Pinegrove Rd. Detective Hamilton testified that he was aware of this discrepancy and this information had been provided to the officers at the briefing. Officers O’Toole and Newmarch were both surprised and had no explanation when the video was put to them that showed they searched Unit 7 as opposed to Unit 207.
[40] This is remarkably careless and even reckless behaviour by officers who knew perfectly well that they were bound by the parameters of the judicial authorization and had a duty to conduct themselves accordingly.
Were the keys and vehicles obtained unlawfully?
[41] The defence argues that Mr. Nkrumah’s s. 8 Charter rights were violated when the police unlawfully seized the keys that lead to the vehicles being found on the property and ultimately searched pursuant to warrants the next day.
[42] It is not disputed that the keys and vehicles were seized without a warrant. There is also no question that but for the seizure of the keys, the vehicles would not have been located nor seized. The Crown argues that the police believed on reasonable grounds that the keys would afford evidence of the offence, pursuant to ss. 489(1)(c) and 489(2)(c) of the Criminal Code, R.S.C., 1985, c. C-46. The onus is on the Crown to establish that a warrantless seizure was justified. The statutory standard of “reasonable grounds to believe” is lower than proof beyond a reasonable doubt, or proof establishing a prima facie case. The standard requires a “reasonable belief”: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1160.
[43] When determining the objective reasonableness of a police officer's subjective belief, regard must be had to the objective and ascertainable facts as seen through the eyes of a reasonable person with the same knowledge, training, and experience of the police officer: R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at paras. 21-24; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 25. This requires the exercise of common sense.
[44] I am satisfied that the seizing of the keys was unlawful. The seizing of the keys was inextricably bound up in the statements elicited by the police in violation of Mr. Nkrumah’s s. 10(b) rights. Detective Hamilton relied on the information from Officer O’Toole that Mr. Nkrumah had confirmed ownership of the keys and the information from him that he had just arrived at the apartment from his work, with his truck being parked outside.
[45] The seizing of the keys and subsequently the vehicles was unlawful and constitutes a violation of Mr. Nkrumah’s s. 8 Charter rights. Detective Hamilton’s testimony, summarized previously at paras 26-27 above, was an attempt to manufacture a connection between Mr. Nkrumah and the keys, further aggravating the seriousness of the violation.
Validity of the ITOs for the Dodge Journey and Dodge Ram
[46] The next issue is the two searches of the vehicles themselves. Once the keys had been seized and the vehicles located on the property, the plan was to seek search warrants for the vehicles to be searched. This was done and the warrants were granted the next day.
[47] The constitutional test for the sufficiency of information underlying a warrant was stated by the Supreme Court in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452, as:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.
[48] Information obtained by unconstitutional means must be excised from the ITO on Garofoli review and what remains, as amplified on review, must be assessed to determine whether the warrant could have issued: Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 52; R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, at p. 251; and R. v. Jaser, 2014 ONSC 6052, paras. 25-33.
[49] Officer Saris was the affiant on both Informations to Obtain (“ITOs”), which are identical. Given my finding that the seizure of the keys was unlawful and in breach of Mr. Nkrumah’s s. 8 Charter rights, reference to the keys must be excised from the ITOs. In addition, I have found that the conversation between Officer O’Toole and Mr. Nkrumah with respect to the sweatshirt and the keys violated Mr. Nkrumah’s s. 10(b) rights and must also therefore be excised.
[50] When all reference to the keys and sweatshirt is excised from the warrant there is no basis for the warrant to issue. Without the above evidence concerning the keys, there was no basis to search the vehicles. The ITOs do not contain other facts in addition to those obtained in contravention of the Charter to support the issuance of the warrant. The ITOs become invalid on their face as there was no basis to search the vehicles.
[51] Other issues were raised with respect to the drafting of the ITOs some of which I will briefly outline here as they are examples of the overall careless conduct of the officers in this case:
i) The description of the events and conversation surrounding the sweatshirt and keys in the ITOs is entirely different from that which was recounted by Officer O’Toole in court.
ii) The front page of the ITO for the Dodge Journey incorrectly has the license plate for the Dodge Ram. Neither Detective Hamilton, Officer Newmarch nor Officer O’Toole noticed this error at the time, notwithstanding their evidence that they reviewed the warrant and ITO.
iii) At paragraph 2, it indicates that Gabriela Belsito was the “operator of a Mazda 3 bearing license plate CPKJ758 which was used as the getaway vehicle.” This is inaccurate; there was no indication that she was the driver at the time of the robbery.
iv) Paragraph 36 is an outline of Mr. Nkrumah’s criminal history which includes charges that have been withdrawn and repeats occurrences that led to convictions without making that distinction. A plain reading of the paragraph suggests that Mr. Nkrumah has far more of a criminal history than is correct. Paragraph 39 is a paragraph outlining Michelle Belsito’s arrest for the Pinegrove charges but is written in a way that suggests it is a prior arrest. Paragraph 42 is the same for Gabriela Belsito and reads as though she has other outstanding charges for drug trafficking and possession of proceeds of crime.
[52] I have concluded that after excising the evidence of the sweatshirt and keys, there was insufficient information before the issuing justice to allow for the issuance of the search warrants. Although the officers acted pursuant to a valid authorization, this does constitute a violation of Mr. Nkrumah’s s. 8 rights.
Second search of the Dodge Ram and Dodge Journey
[53] The next issue is the second search of each vehicle. When the police searched the Dodge Ram nothing of note was found other than a black box, which the police left in the vehicle. At that point the police did not have a basis for detaining the vehicle any longer and the owner of the vehicle should have been notified. This was not done. Two days later, however, the police decided to re-enter the Dodge Ram to now obtain the black box which they believed was a tracker. This was done outside the time frame of the original warrant, resulting in the warrantless seizure of the black box/tracker, and constitutes a further violation of Mr. Nkrumah’s s. 8 Charter rights.
[54] The police also entered the Dodge Journey a second time to look for a second set of keys. This was done within the timeframe of the original warrant, but was not in conformity with the parameters set out in Appendix A. It does not appear that anyone turned their mind to obtaining another warrant or applying to amend Appendix A to authorize the officers to look for a second set of keys. I find that this is a further breach of Mr. Nkrumah’s s. 8 Charter rights but is a minor one.
Returns to Justice
[55] The Returns to Justice reveal an unacceptable level of carelessness and inattention to detail that simply cannot be condoned. The Returns to Justice were all completed and filed by Officer Burns, an officer of 16 years’ experience.
[56] The first Return to Justice was in relation to the Pinegrove warrant. The Return makes no mention of the fact that the keys to the Dodge vehicles, the Dodge Ram, and the Dodge Journey were seized. In addition, in the description of items seized, it includes items that were not seized at Pinegrove but were seized from the Dodge Journey pursuant to that warrant.
[57] These omissions are problematic as there is no mention of certain items being seized at all, no justification provided for the seizure of other items, and certain listed seizures are just incorrect.
[58] A Return was filed for the Dodge Journey and its contents. Again, this Return contains errors and misleading information. On the front page of the Return, there is no indication as to which vehicle it relates to and simply says “vehicle”. The date of the issuance of the warrant is listed as September 11, 2021, while the date of the search is listed as the day before on September 10, 2021. The authorization for the search was listed as “s. 487.1 of the Criminal Code pursuant to s. 87 of the Cannabis Act”. This is incorrect. The search was authorized under the Controlled Drugs and Substances Act, S.C. 1996, c. 19.
[59] In the description of things seized in Appendix A, the only item listed is the vehicle itself, “White Dodge Journey”. This of course does not make any sense as it is the Journey that was being searched. What is more problematic, however, is that looking at Appendix A it says “Mentioned in Warrant” as though the Journey were seized pursuant to a warrant, which it was not.
[60] No Return was ever filed with respect to the Dodge Ram or the black box that was seized from the Dodge Ram on September 13, 2021.
[61] The Crown acknowledged that the Returns to Justice were very poorly drafted and required more care but argued that this does not automatically translate into a s. 8 Charter violation. There must be a contextual examination and analysis of the impact on the privacy rights of the individual. They argued that other than the black box/tracker, judicial oversight was present and avenues to have the seizures challenged or property returned was available.
[62] I am unable to accept this argument. The persistent carelessness and inattention to detail is astonishing and resulted in a lack of effective judicial oversight of property in which Mr. Nkrumah maintained a privacy interest: R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737. As Fairburn J.A. held in R. v. Canary 2018 ONCA 304 at para. 45:
Section 489.1 should not be conceptualized as a meaningless exercise in paperwork. Filing the initial report under s. 489.1(1) is the act that places the property within the purview of judicial oversight. It provides for a measure of police accountability when dealing with property seized pursuant to an exercise of police powers. This provides an important measure of protection to the party who is lawfully entitled to the property, but also provides a measure of protection to the police who become the custodians responsible for the property seized. Allowing for this type of oversight is particularly important in the wake of warrantless seizures, ones where no prior authorization has been given, meaning the seizures are beyond the knowledge of the judicial system.
[63] The Returns to Justice were so carelessly drafted and riddled with errors as to constitute a violation of s. 8. On a simple reading of the Returns, it was unclear or incorrect what had been seized, what had been searched, what property was found where, and what the authorization was for the search in the first place. There was no Return to Justice filed for the Dodge Ram, nor the black tracker. These constitute additional violations of Mr. Nkrumah’s s. 8 rights.
SECTION 24(2) ANALYSIS
[64] Section 24(2) of the Charter requires the court to exclude evidence obtained in a manner that infringes the Charter if the admission of the evidence would bring the administration of justice into disrepute. The onus is on the accused to establish a case for exclusion.
[65] The Supreme Court stressed in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (“Grant (2009)”), that the focus of s. 24(2) is the long-term repute of the justice system. It further cautioned in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, that “[t]o appear to condone wilful and flagrant Charter breaches that constitute a significant incursion on [Charter] rights does not enhance the long-term repute of the administration of justice; on the contrary, it undermines it”: at para. 39.
[66] The criteria for excluding the tainted fruits of unconstitutional conduct under s. 24(2) of the Charter are based on the following:
(i) The seriousness of the Charter-infringing state conduct;
(ii) The impact of the breach on the Charter-protected interests of the accused;
(iii) Society’s interest in the adjudication of a case on its merits.
[67] It is well established that a pattern of Charter breaches may cumulatively increase the seriousness of the Charter-infringing state conduct: Grant (2009), at para. 75. This determination of whether there has been a pattern of misconduct is a factual one and must be done on a case-by-case basis: see R. v. Zacharias, 2023 SCC 30, at paras. 47-49, 56.
[68] Section 24(2) of the Charter is “triggered” where evidence is “obtained in a manner” that violates an accused’s Charter rights. The Supreme Court in R. v. Tim, 2022 SCC 12, at para. 78, outlines the principles that have developed, including that courts should take a “purposive and generous approach”. The “entire chain of events” should be examined. The connection between the breach and the impugned evidence can be “temporal, contextual, causal or a combination of the three”. A remote or tenuous connection between the Charter breach and the impugned evidence will not suffice to trigger s. 24(2): R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3; R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235; R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561; and R. v. Davis, 2023 ONCA 227, 166 O.R. (3d) 401.
[69] The Crown argues that the evidence in this case was not “obtained in a manner” that triggers a s. 24(2) analysis given the lack of temporal connection between the searches of the vehicles and the initial breach of s. 10(b). They also argue that the breaches are at the lesser end of seriousness, and the police at all times acted in good faith. Mr. Nkrumah had a lesser privacy interest in the vehicles thus lessening the impact on his interests. While a s. 10(b) breach is always serious, in this case it appeared to have little to no impact on Mr. Nkrumah as evidenced by his behaviour on the BWC.
[70] When looking at the entire chain of events in this case, I am satisfied that the evidence of the firearms and ammunition was “obtained in a manner” that triggers a s. 24(2) analysis. But for the statements having been unlawfully obtained from Mr. Nkrumah and the unlawful seizure of the keys, the vehicles would not have been found nor searched. The police continued to violate Mr. Nkrumah’s s. 8 rights notwithstanding the judicial authorization, through to and including the filing of the Returns to Justice. The connection between the breaches in this case and the evidence of the firearms and ammunition is a combination of temporal, contextual and causal.
[71] The court must then determine whether admitting the evidence would bring the administration of justice into disrepute by considering the three lines of inquiry described in Grant.
Seriousness of the Charter-infringing conduct
[72] The seriousness of the state’s infringing conduct deals with (a) whether the conduct was willful or inadvertent and (b) the need for the court to dissociate itself from the conduct. The concern at this point is not to “punish the police” but rather to “preserve public confidence in the rule of law and its processes”: Grant (2009), at para. 73.
[73] Minor violations occurring in good faith may minimally undermine public confidence if the evidence is admitted. On the other side of the spectrum, willful or reckless disregard for Charter rights may risk bringing the administration of justice into disrepute if the evidence is admitted. An officer may be found to be acting in good faith, even if she is manifestly mistaken in her understanding of the law. A conclusion of good faith must consider all the circumstances surrounding the police conduct: see Beaver, at para. 120.
[74] And importantly, “It should also be kept in mind that for every Charter breach that comes before the courts, many others go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern tends to support exclusion”: see Grant (2009), at para. 75.
[75] The breaches of Mr. Nkrumah’s ss. 8 and 10(b) rights arising from his arrest were serious. In their dealings with Mr. Nkrumah the officers conducted themselves with persistent carelessness and disregard for his Charter rights. These were not inexperienced officers, but senior officers who should have known better. I find that this emphasizes the seriousness of the breaches: see Tim, at para. 84.
[76] When Mr. Nkrumah was arrested for the drugs and cash, Officer Newmarch failed to advise him of his rights to counsel. Officer Newmarch had no notes of providing rights to counsel and only when it was pointed out to him two years later, did he create a will say. Detective Hamilton never heard Officer Newmarch provide rights to counsel. Officer Newmarch misled the court about having in fact done so. It did not happen, and Officer Newmarch was dishonest with the court when he said he did.
[77] Officer O’Toole, an officer of more than 16 years’ experience, engaged in “small talk” with Mr. Nkrumah without ever inquiring as to whether he had been provided his rights to counsel or whether he indicated he wished to speak with counsel. He continued by asking Mr. Nkrumah questions that might have bearing on his potential liability for the drugs and cash. Officer O’Toole did not make notes of these conversations until the next day and aspects of his notes were clearly contradicted by the exit video. Whether this was simply careless or intentional is not clear, but regardless is serious and concerning.
[78] Officer O’Toole and Detective Hamilton told different versions of the alleged conversation between Officer O’Toole and Mr. Nkrumah about his ownership of the keys. Officer O’Toole acknowledged that his version of events was different than what was contained in his notes, and that he did not have a good recollection of the events. Detective Hamilton, when confronted with the exit video which demonstrated that his version was untrue, tried to claim it must have been a different set of keys. Given the importance of the keys to the investigation, the carelessness is concerning. Misleading the court is egregious conduct that again cannot be condoned.
[79] The seizure of the keys was primarily based on statements by Mr. Nkrumah that were in serious violations of his s. 10(b) rights. The searching of the vehicles was unlawful and there was no judicial oversight given the serious problems with the Returns to Justice.
[80] I am unable to find that the officers acted in good faith in this case. All the officers involved in this case were senior and experienced. Their conduct was careless, cavalier and showed a blatant disregard for Mr. Nkrumah’s Charter rights. This is further aggravated by Officer Newmarch and Detective Hamilton misleading the court. The cumulative nature and impact of the breaches exacerbates the seriousness of the state misconduct here.
[81] The violations of Mr. Nkrumah’s ss. 8 and 10 rights were serious and heavily favour exclusion.
Impact of the Charter violation on the protected interests of the accused
[82] The second branch of the test is outlined in Grant, at para. 76:
This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
[83] The purpose of s. 10(b) of the Charter is to assist detainees to regain their liberty and guard against the risk of involuntary self-incrimination: Suberu, at para. 40. There is also a psychological component as the right is a “lifeline for detained persons” in terms of delivering legal advice and guidance: see Rover, at para. 45.
[84] In this case there is a clear causal connection between the s. 10(b) breach and the discovery of evidence: see R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, at paras. 112-16. Mr. Nkrumah was not advised of his right to counsel while on scene. He was also not cautioned. The officers proceeded to speak with him and elicited evidence. This evidence was then used to justify the seizure of keys that ultimately led to searches of his vehicles.
[85] I am mindful of the fact that while Mr. Nkrumah did have a privacy interest in the vehicles, he was not the registered owner, thus reducing his overall expectation of privacy. The police elicited incriminatory statements from Mr. Nkrumah that directly caused the seizure of more incriminating evidence all in violation of ss. 8 and10(b). In my view, the impact on Mr. Nkrumah’s Charter protected interests was very significant and strongly favours exclusion.
Society’s interest in adjudicating a case on its merits
[86] In considering this factor, the question to be asked is “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.” The reliability of the evidence is an important factor in this line of inquiry: Grant (2009), at para. 79.
[87] I am mindful of the pronouncements in R. v. Omar, 2019 SCC 32, [2019] 2 S.C.R. 576, adopting the reasons of Brown J.A. in R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1, and R. v. Whittaker, 2024 ONCA 182, that the third Grant factor must still play a role in the balancing exercise. Firearms are not to be treated as “fungible” given their very real danger to society, but at the same time there is no “firearms exception” requiring that guns must be admitted into evidence. The overarching question is whether admission of the evidence would bring the administration of justice into disrepute.
[88] This factor weighs strongly in favour of the admission of the evidence. The evidence is clearly reliable and consists of multiple firearms and ammunition. Excluding this evidence would mean the end of the Crown’s case with respect to multiple firearms. Courts have repeatedly recognized that firearms are a very real and concerning problem in the City of Toronto. The seriousness of the charges underscores the heightened public interest in having the case tried on its merits.
[89] While the seriousness of the offence cuts both ways when assessing this factor, there is no question that there is a strong interest in the adjudication of this offence on the merits.
Balancing
[90] The final steps in the s. 24(2) analysis involves balancing the factors under the three lines of inquiry. The balancing is a qualitative one, one that is not capable of mathematical precision: see Harrison, at para. 36. The cumulative weight of the first two lines of inquiry must be balanced against the third line of inquiry: R. v. Lafrance, 2022 SCC 32, at para. 90; Beaver, at para. 134.
[91] In this case the balancing exercise on the first two lines of inquiry strongly pulls toward exclusion. The third factor strongly pulls toward inclusion. While the third line of inquiry strongly favours inclusion, it does not tip the balance in favour of admissibility: Lafrance, at para. 90; R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643.
[92] The breaches in this case were serious, ongoing, and not borne out of good faith efforts. The breaches show a persistent disregard for Charter rights that simply cannot be condoned. The cumulative nature of the breaches in this case aggravates the seriousness of the Charter-infringing conduct and the impact of the breaches on Mr. Nkrumah’s protected rights. My finding that the officers were dishonest in their testimony is another relevant factor I have considered in the balancing exercise and conclude that the court must strongly dissociate itself from such conduct: Harrison, at para. 26.
DISPOSITION
[93] I have carefully considered the competing interests in this case and conclude that the court must dissociate itself from the state misconduct in this case. Admission of the evidence would bring the administration of justice into disrepute. The evidence must be excluded.
[94] The application is granted.
J.K. Penman J.
Released: May 30, 2024
COURT FILE NO.: CR-22-50000535
DATE: 20240530
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
GABRIELA BELSITO AND PHILLIP NKRUMAH
REASONS FOR JUDGMENT
J.K. Penman J.
Released: May 30, 2024