Court File and Parties

COURT FILE NO.: CR-30000426 DATE: 2024-08-12

ONTARIO SUPERIOR COURT OF JUSTICE

Between:

HIS MAJESTY THE KING – and – ILIRJON BAJRAKTARI AND KAZIYA ST. LOUIS Defendants

Counsel: David Steinberg, for the Crown Nicholas Decock and Christian Pearce, for the Defendants

HEARD: March 4-8, 2024

P.T. SUGUNASIRI J.

Reasons for Decision on Charter Application

Overview

[1] On Halloween night in 2021, the Defendants were back seat passengers of a Quebec-plated Nissan SUV sitting outside the store of an Ultramar gas station. Two uniformed police officers entered the Ultramar lot, saw the parked Nissan, and took an interest in the vehicle. As a result of alleged cascading concerns about vehicle plating, cannabis use and open alcohol, the Defendants were asked for their identification, subjected to a pat down search, and asked to wait on the curb by the car while one officer searched the vehicle. Within minutes, the police located a Louis Vuitton bag containing $12,000 in cash and a closed Tommy Hilfiger satchel containing a 45mm Glock handgun loaded with 27 rounds of 9mm bullets. The Defendants were arrested and charged with various firearms offences. Mr. St. Louis was charged with the possession of proceeds of crime over $5000.

[2] The trial with judge and jury was set to commence on March 11, 2024. This was the Charter voir dire. The issue is whether I should exclude the money and the gun because they were the fruits of multiple Charter breaches. On March 11, 2023, I gave a bottom-line decision dismissing the application. These are the written reasons that follow.

Analysis

Background

[3] The record benefits from four videos: two from the Ultramar’s surveillance cameras, one from the in-car camera (“ICC”) of Officers Samson and Dzingala, and one from the ICC of backup Officers Lyle and De Vreeze. Along with the videos is viva voce evidence from Officers Samson, Dzingala and Lyle. There is little controversy about the sequence of events as gleaned from the videos.

[4] At approximately 8:53 p.m. the Defendants were backseat passengers in a Nissan SUV parked in front of the store of an Ultramar gas station at Eglinton and Midland Avenues in Scarborough. They were waiting for the return of a fifth passenger who had gone into the store. At 8:57 p.m. Officers Samson and Dzingala of the Toronto Police Service (“TPS”) pulled into the lot where they immediately observed the unplated front of the Nissan and at least three male occupants wearing hoodies with their hoods up. Officer Samson was the driver and Officer Dzingala was the passenger. Officer Samson pulled into the lot, drove closely and slowly along the side of the Nissan to its rear and reversed back to park nose to nose with the vehicle, about six feet away. During this time, the officers noticed that the Nissan had a Quebec plate and ran a plate search. The cruiser lights were switched off until Officer Samson re-engaged them and advanced the cruiser to be about one foot away from the Nissan. The plate search revealed several flags on the vehicle’s plate, including a warning that the vehicle was not authorized to circulate. The officers exited the cruiser to speak with the driver. [1]

[5] Officer Samson testified that he smelled freshly burned marijuana as he approached the front passenger side of the vehicle. That was the side directly in front of him as the driver of the police cruiser. The window was open. He greeted the occupants, but no one responded. Officer Samson directed his attention to the driver and requested his licence and registration. While waiting for those documents, Officer Samson asked “[W]ho is smoking the weed in here?” It appears that one of the Defendants responded and Officer Samson dialogued with them briefly about it. The ICC video later reveals that the window behind the front seat passenger was also open. Officer Samson confirmed the driver’s information and observed out loud that the occupants were “awfully quiet”. At that point, he flashed his light into the front passenger area of the car and discovered an open wine bottle on the floor. He first asked the passenger for his ID and then asked the Defendants sitting in the rear whether they also had ID.

[6] At 9:01:23 p.m. the ICC audio recording reveals that Officer Samson loudly announced to Officer Dzingala that he found open alcohol in the car. He also engaged with the front seat passenger about the open alcohol, stating that it was not permitted. He asked the Defendants if they had alcohol in the back. At 9:03 p.m. Officer Samson opened the front passenger door and asked the front passenger to exit. At 9:03:53 p.m., Officers Lyle and De Vreeze arrived as a backup unit. They helped remove the remaining occupants of the vehicle one by one, subjecting each one to a frisk search. [2] Mr. Bajraktari exited the vehicle at about 9:05:49 p.m.

[7] Officer Samson asked Mr. St. Louis to exit the vehicle seconds later. While conducting his frisk search, he discussed with Mr. St. Louis why he stated that the driver was smoking weed. Officer Samson testified that, as Mr. St. Louis was exiting the car, he observed marijuana flakes drop from his clothing. Officer Samson’s testimony is consistent with his discussion with Mr. St. Louis that can be heard at 9:06 p.m. It was at this time that Officer Samson found the Louis Vuitton bag containing a package of marijuana, $12,000 in cash and other items, including rolling paper. When asked on cross-examination about this discovery, Officer Samson testified that he thought nothing of the $12,000 of bundled cash, even though he asked Mr. St. Louis how much it was and he bet that Mr. St. Louis knew the amount “to the dime”.

[8] The Defendants sat on the curb under Officer Lyle’s supervision while Officer Samson searched the car. At 9:07:48 p.0m. Officer Samson said “cuff ‘em up.” One of the officers can be heard advising that “you are under arrest.” The officers handcuffed all the occupants of the vehicle. At 9:08:40 p.m. an officer can be heard saying “You have a gun in the backseat.” At 9:10:52 p.m. and again at 9:11:44 p.m. Officer Samson advised the Defendants that they were under arrest for possession of a firearm. At 9:12 p.m. Officer Lyle read the Defendants and two other occupants their rights to counsel and at 9:14 p.m. he cautioned them. The Defendants indicated that they wished to speak to counsel. Officer Lyle indicated that they could speak to counsel as soon as the officers could offer them privacy at the station. The entire interaction spanned 17 minutes.

Issues

[9] The Defendants allege multiple Charter breaches during their interactions with the police. I address each in turn.

Alleged Breach #1 – Entering the Ultramar station, driving closely beside the Defendants’ vehicle, and parking six feet away did not detain the Defendants

[10] The Defendants argue that Officers Samson and Dzingala intended to question the occupants from the moment they entered the gas station and saw a vehicle with three hooded men sitting in front of the store. They had no authority to do so because they were on private property where the Highway Traffic Act, R.S.O. 1990, c. H.8 does not apply. As such, they argue that the Defendants were arbitrarily detained contrary to s. 9 of the Charter, either when the cruiser entered the gas station lot or when Officer Samson pulled in front of the Nissan, six feet away, and switched his vehicle lights off while he waited for the results of the plate inquiry.

[11] Section 9 Charter rights are not engaged if the Defendants were not detained, as understood in the legal sense. I do not find that they were detained at this point in the interaction. A person is detained if their liberty interest is suspended “by a significant physical or psychological restraint”: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44. In Grant, at para. 44, the Supreme Court of Canada held that psychological detention is established where the individual has a legal obligation to comply or a reasonable person in the Defendant’s circumstances would conclude by reason of state conduct that they had no choice but to comply.

[12] In this case, Mr. St. Louis and Mr. Bajraktari were back seat passengers. Nothing was asked of them. There was nothing to comply with. When Officer Samson pulled in front of the Nissan, placing the vehicles nose to nose and six feet apart, would a reasonable back-seated passenger conclude that they could not leave? As part of the required fact-specific inquiry mandated by the Court of Appeal for Ontario in R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214, at paras. 7-8 and 17-22, I consider this question in the context of how the police cruiser came to be in front of the Nissan – namely after passing closely by it to inspect the rear and then reversing back in front. Even if a back-seated passenger may have found this movement odd and purposeful, I do not conclude that a reasonable rear-seated passenger would believe that the mere fact that a cruiser showed some interest in their vehicle and stopped in front of it would significantly restrict their liberty or prevent them from exiting the vehicle.

[13] In determining what a reasonable person in the Defendants’ circumstances would conclude, one factor to consider is the characteristics or circumstances of Mr. St. Louis and Mr. Bajraktari, including their physical stature, minority status and level of sophistication: Grant, at para. 44. The Defendants did not allude to any characteristics or circumstances of either Mr. St. Louis or Mr. Bajraktari that would cause a reasonable person in their shoes to conclude that they were detained by a police cruiser who has taken an interest in a vehicle they are in. The only characteristic raised in the evidence is that the occupants of the car had their hoods up. However, no one suggested that a person sitting in the rear of a car outside the store of a gas station with their hood up would reasonably conclude that the way Officer Samson parked his cruiser and approached the vehicle detained them. Similarly, Mr. St. Louis appears to be a Black man, but no argument was made that this characteristic would lead a reasonable person in his shoes to conclude that he was detained.

[14] I find no detention at this stage of the interaction and therefore do not need to decide whether the Highway Traffic Act was operable on Ultramar’s premises.

Alleged Breach #2 – Nudging the police cruiser forward did not detain the Defendants

[15] The Crown agrees that when Officer Samson nudged the police cruiser within a foot of the Nissan, nose to nose, the driver was detained. I need not decide this issue. The driver is not an applicant in these proceedings. As noted above, Mr. Bajraktari and Mr. St. Louis were back seat passengers. I am not persuaded that nudging the cruiser within one foot of the front of the Nissan detained them as passengers, nor would a reasonable rear-passenger in the circumstances of this case conclude that they could not leave when they see the officers exiting their cruiser and approaching the front passenger and driver.

[16] The Defendants may have been detained in the sense that their passage to the next destination was delayed because they were passengers beholden to the movements of the driver. But as Iacobucci J. notes in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 19: “…the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.” In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 24, the Supreme Court of Canada reminds us that the meaning of detention is determined by a purposive approach that balances society’s interest in effective policing with a detainee’s interest in robust Charter rights. As per McLachlin C.J. and Charron J. in Suberu, at para 24:

To simply assume that a detention occurs every time a person is delayed from going on his or her way because of the police accosting him or her during the course of an investigation, without considering whether or not the interaction involved a significant deprivation of liberty would overshoot the purpose of the Charter.

[17] In this case, Mr. Bajraktari and Mr. St. Louis were not detained in the legal sense. They were subject to no more than the preliminary stages of the effective policing of a driver who at some point would have left the gas station, onto a highway, with a potentially invalid plate. Mr. Pearce suggests that it is merely speculative to say that the Nissan arrived at the gas station from a regulated “highway” as defined in the Highway Traffic Act, and at some point, would leave the gas station and enter a regulated highway. On the facts of this case, I easily draw this common sense inference. The more speculative theory is that of the defence – that perhaps the Nissan was towed there and was not able to return to a regulated highway on its own. This defies logic given that the Nissan was stopped in front of the store, with a driver in the driver’s seat, and an occupant advising Officer Samson that they were waiting for the return of a passenger who had gone into the store to purchase a drink.

The Officers’ investigation was not a ruse

[18] This leads me to address the overall defence theory that Officer Samson’s activities were all a ruse. I find that they were not. Officer Samson testified that he was concerned about plating, a fire route violation and insurance issues given the return on the plate that the vehicle was to be out of circulation. The police have a common law authority to prevent the commission of offences, including regulatory ones: Mann, at para. 26. Both officers were heavily cross-examined on this point. The defence believes that Officer Samson was simply policing “in the shadow of legality” – bolstering an arbitrary search of suspicious men with hoodies with an after the fact, convenient focus on a municipal bylaw and a plating issue.

[19] I agree with the defence that it is difficult to imagine that Officer Samson, who was the senior officer in charge, was particularly concerned about a fire route violation. It is quite possible that the fact that the vehicle was stopped in front of a gas station store with men in hoodies occupying it contributed to Officer Samson taking a closer look at the occupants and directing Officer Dzingala to run a plate search. That said, the officers testified that they run plate searches all the time and not always for any reason. There was nothing wrong with the officers taking a closer look at the Nissan. As Mr. Pearce argued, the vehicle’s appearance, including its occupants, would draw anyone’s suspicion.

[20] Even if Officer Samson overemphasized the fire route issue and minimized his initial impression of the Nissan’s occupants, I find him a credible witness on the overall sequence of events and his intentions. I accept his evidence that it was the potential plate violation that triggered him to decide to park his cruiser and speak to the driver. He knew nothing else. I accept his evidence that the printed paper version of the TPS inquiry results is not how the information appears on the cruiser screen. The printed version shows the driver’s (Mr. Shraibman) outstanding charges at the bottom of the second page. The police screen did not show this page without further scrolling. No such scrolling was done. Officer Samson’s version of events is confirmed by the dialogue that can be heard in the cruiser moments before he decided to speak with the driver and later while waiting in the cruiser to enter the sally port at the station. It was not until 10:15 p.m. that night that Officer Samson became aware of the driver’s criminal charges, and said, “You would think that would show up when we were in the car.” His reaction was clearly one of surprise. There was no evidence that he tailored his testimony to align with any of the other pieces of evidence.

[21] I find no ruse. Even if I discount Officer Samson’s evidence on his intentions and find him incredible, as the defence would urge, the sequence of events illustrated by the ICC and store videos satisfy me that police actions were grounded in a bona fide plate issue even if catalyzed by an initial suspicion of the occupants of the Nissan.

Alleged Breach #3 – the Defendants’ s. 8 rights were not breached when Officer Samson asked them for identification

[22] Officer Samson testified that when he exited the cruiser and was on his way to speak with the driver, he smelled freshly burned marijuana. He claims his plate inquiry was compounded by a Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1 (“CCA”) inquiry. I accept this evidence. The defence argues that there was no other evidence of alleged weed at the time Officer Samson said that he smelled it. Officer Dzingala noted in his notes that he saw one of the occupants smoking something, but Officer Samson did not observe this. The defence argues that this fact is more evidence of the policing fraud that was being perpetrated on the Defendants.

[23] Visual corroboration is not needed. Police officers are expected to use their senses in the course of their duties. Officer Samson did that. Officer Dzingala did that. They used different senses to suspect the same activity. Further, ICC video and audio recording show Officer Samson asking all the occupants of the vehicle about “weed”. He testified that the front passenger side window was open. I conclude from the video that the back passenger side window was also down. [3] Everyone could hear the inquiry. It would be a grand conspiracy indeed for the officers to coordinate their independent observations and orchestrate their remarks to the passengers knowing that it was being captured on ICC audio, in order to invent a basis for a CCA inquiry when they already had a legal reason to approach the vehicle. There was no conspiracy and no fabrication. Officer Lyle, who arrived on the scene later, also observed and noted to Mr. Bajraktari during his frisk search that he saw weed on the back seat.

[24] I also accept Officer Samson’s evidence that when he first approached the vehicle, he received no response from the occupants, which he thought was odd. He could also smell liquor. Both his observation of the non-responsive occupants and the smell of liquor caused him to flash his flashlight into the car and discover an open bottle of wine in the front passenger’s foot well. He spoke clearly and loudly through two open car windows about this open bottle, stating that it was not permitted. At this point, the preliminary plate and CCA inquiries changed into a full-blown Liquor License Act, 2019, R.S.O. 1990, c. L.19 ("LLA") detention. The police may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected either to a particular crime or regulatory offence: Mann, at para. 45; R. v. Darteh, 2016 ONCA 141, [2016] O.J. No. 896, at paras. 2, 4, 7 and 8; and R. v. Graham, 2018 ONSC 6718, [2018] O.J. No. 5992, at para. 45.

[25] Having detained the occupants for an LLA investigation, the police conducted a lawful search. Section 8 of the Charter protects citizens from unreasonable search and seizure by the state. Section 32(1) of the LLA prohibits any person from having care and control of a motor vehicle, whether it is in motion or not, while the vehicle contains alcohol accessible to the driver. Section 32(5) permits a warrantless search of a vehicle and its occupants if the officer has reasonable grounds to believe that liquor is being unlawfully kept in a vehicle. Section 31 prohibits passengers from drinking outside of a private residence, licenced establishment or other private place as defined by the regulations.

[26] At this point, Officer Samson had directed Officer Dzingala to call for backup with the intent of searching the occupants and the vehicle for other open liquor. There was ample evidence for the officers to form reasonable grounds to believe that there was open liquor in the vehicle contrary to the LLA. Officer Samson did not know if there was other alcohol in the Nissan. He asked for identification in anticipation of having each person exit the car to conduct a vehicle search. He testified that the reason for asking for identification was in part to deter the occupants from fleeing, knowing that he was going to direct an LLA search. I accept his explanation. Ultimately, nothing came of the request. It was only after the arrest for the firearm that other officers obtained the Defendants’ identification.

[27] The Defendants also complain that the frisk searches were unlawful. I disagree. I have already found that the detention was lawful due to reasonable suspicion of an LLA violation. Preliminary frisk searches are part of officer safety before conducting a search. In this case the frisk searches also served to protect the public who were milling in and around the detention site: Mann, at para 45. I find no violation of Mr. Bajraktari’s and Mr. St. Louis’ s. 8 Charter rights at this stage.

Alleged Breach #4 – The search of the Tommy Hilfiger satchel was not contrary to s. 8 of the Charter

[28] Within approximately one minute of searching Mr. St. Louis’s Louis Vuitton satchel containing $12,000 in cash and other items, including cannabis and rolling paper, Officer Samson found the firearm in a closed Tommy Hilfiger satchel. He testified that he first felt the outside of the bag before opening it to see what was inside. When he felt the outside of the satchel, Officer Samson testified that he thought the contours indicated that it could be the long barrel of a firearm. On cross-examination he agreed that he suspected a possible firearm but was still searching under the LLA.

[29] The Crown maintains that, at this point, it was a permissible search not only under the LLA but also the CCA. Officer Samson testified, and I accept, that he observed marijuana flakes falling off Mr. St. Louis when he exited the vehicle. He then saw packaging displaying a marijuana symbol and a rolling paper in the Louis Vuitton satchel. This was sufficient for Officer Samson to search the rest of the vehicle for other cannabis products pursuant to the CCA. [4] The defence argues that once Officer Samson found the wad of cash, it became a Criminal Code, R.S.C., 1985, c. C-46 investigation requiring a warrant to conduct further searches. In the alternative, the defence argues that it ceased to be an LLA or CCA investigation once Officer Samson suspected there was a firearm in the satchel. He should have stopped at that point, sealed the car, and sought a Criminal Code search warrant.

[30] I disagree. A suspicion of criminal activity arising during a regulatory search does not automatically taint the search: R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851. I agree that Officer Samson’s testimony that he thought nothing of the bundled cash is not believable. The manner of bundling would have raised some suspicion of criminality. However, the test is whether the warrantless search continues to be Charter compliant. To be compliant, the Crown must show on a balance of probabilities that the search was authorized by law, that the law itself is reasonable, and that the manner in which the search was carried out was reasonable: R. v. Collins, [1987] 1 S.C.R. 265, 33 C.C.C. (3d) 1, at p. 278; R. v. Caslake, [1998] 1 S.C.R. 51, 121 C.C.C. (3d) 97, at para. 10; and Nolet, at para. 21.

[31] When Officer Samson was searching both the Louis Vuitton satchel and the Tommy Hilfiger satchel, he did so under the CCA and the LLA. He had authority to open the bags and look inside: R. v. Williams, 2024 ONCA 69, 169 O.R. (3d) 481, at para. 60. Under s. 12(2) of the LLA and s. 12(2) of the CCA, individuals may carry closed alcohol and sealed cannabis packed in baggage that is fastened closed or is not otherwise readily available to any occupant of the vehicle. A zipped or partially zipped satchel in the body of the car in the passenger area is not, in my view, “baggage that is fastened closed or is not otherwise readily available to any person in the vehicle.”: Q. v. Phillips, 2021 ONSC 5343, 74 C.R. (7th) 121, at paras. 61-62. Both satchels found in the back of the car were accessible to the occupants and could have contained either unsealed marijuana, open liquor, or liquor that could readily be opened by any of the occupants. This is not a situation where Officer Samson searched luggage in the trunk of the car inaccessible to the occupants. Neither satchel fell within the exception contemplated by the LLA and CCA.

[32] Turning to the second and third part of the Collins test, these statutory provisions were not challenged, and the manner of search was reasonable. Even though he found himself in a dynamic and evolving situation, Officer Samson took the time to first feel the outside of the Tommy Hilfiger satchel. He could have simply opened it. When he did that, he thought that it felt like the long barrel of a firearm. The fact that he took a stepped approach to search this bag cannot turn an otherwise legal regulatory search into an illegal one. Liquor comes in all shapes and sizes, as does cannabis. I am satisfied that there was still a reasonable basis to search the satchels under the CCA and LLA. [5] The key question is whether a lawful purpose was exploited to achieve an impermissible aim: Nolet, at para. 36. I do not find that Officer Samson exploited a lawful purpose to achieve an impermissible aim. It was a dynamic and evolving situation that he and Officer Dzingala appropriately responded to. The gun was in plain view during an LLA / CCA search. When Officer Samson discovered the gun, he testified that it surprised him, a reaction verified by the ICC videos where Officer Samson brings Officer Lyle over to observe the firearm in the satchel before removing it to prove it safe.

[33] I find no breach of the Defendants’ s. 8 Charter rights.

Alleged Breach #5 – The Defendants were told of the reason for detention and arrest, and were informed of their right to counsel

[34] I have already concluded that the Defendants were detained when Officer Samson discovered the open wine bottle and called for backup. Officer Samson discovered the open bottle at 9:03 p.m. It would have been clear to the Defendants that the reason for their search and investigative detention was to identify LLA infractions. Formal language is not necessary: R. v. Nguyen, 2008 ONCA 49, 232 O.A.C. 289, at para. 16. Officer Samson clearly identified for all to hear that his concern was about the open liquor. Three minutes later, while removing Mr. St. Louis from the vehicle, Officer Samson also discussed potential CCA infractions with him, having seen marijuana flakes fall off his clothing. Officer Samson spoke to Mr. St. Louis about the “weed”. There was no violation of s. 10(a) of the Charter, which requires a detainee to be informed promptly of the reason for detention. The Defendants were so informed at the time of detention.

[35] At 9:07 p.m., four minutes after the Defendants were told of the LLA investigation, and one minute after the officers had cleared the vehicle to make it ready for search, Officer Samson discovered the firearm and had the Defendants arrested while he proved the gun safe. In that time, while he was ensuring officer and public safety, he held off answering questions, including Mr. St. Louis' request to make a call. I find the officers’ conduct at the time of arrest to be Charter compliant. By 9:08 p.m. the occupants were told that the police had found a gun. This was repeated two more times at 9:10 p.m. and 9:11 p.m. Officer Lyle gave the Defendants their right to counsel at 9:12 p.m.

[36] Given this timeline, there was no time for the police to inform the Defendants of their right to counsel upon investigative detention before a gun was discovered and they were arrested. The Defendants’ safety frisk search occurred one to one and a half minutes before the gun was located. Further, to the extent that the nine minutes between discovering the open wine bottle and being advised of their right to counsel amounts to delay, I find it was justified in these circumstances. The search under the LLA required the vehicle to be cleared. The clearing required an orderly process as members of the public entered in and out of the gas station store. In my view, there were exigent circumstances that justified the nine-minute delay.

[37] There is also some authority, as considered by Code J. in R. v. Graham, 2018 ONSC 6718, 2018 CarswellOnt 19200, at paras. 51-52 and by the British Columbia Supreme Court in R v. Parker, 2010 BCSC 919, 2010 CarswellBC 1653, at paras. 37-43 that the requirement to immediately inform a detainee of his right to counsel upon detention is not as stringent in the regulatory context as it is in the criminal context. That jurisprudence arises largely in the context of Highway Traffic Act stops where a brief detention to enforce highway safety and a suspension of s. 10 rights is a reasonable limit under s. 1 of the Charter. Parker applied the principle to a detention under British Columbia’s Liquor Control and Licensing Act, R.S.B.C. 1996, c. 267 that has similar wording to Ontario’s LLA.

Alleged Breach #6 – No delay in facilitating speaking with counsel

[38] After Officer Lyle advised the Defendants of their right to counsel, the Defendants indicated that they wanted to speak to counsel. The Defendants were at the front door of an open gas station store when detained and then arrested. Officer Lyle appropriately advised that they could contact counsel at the station when the officers could secure a private location for them to have the call. This is a legitimate exigent circumstance for delay: R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78 (b). The Defendants were transported to the station at approximately 9:30 p.m., after their arrest, to be booked and to exercise their right to counsel. Officer Samson and his team called enough personnel to transport the Defendants as quickly as possible from the Ultramar to the police station. There was no breach of the implementational component of s. 10 of the Charter.

Alleged Breach #7 – Questions post-arrest amount to a failure to “hold off” contrary to s. 10(b) of the Charter

[39] After the Defendants advised Officer Lyle that they wanted to speak with counsel, Officer Lyle admits that he asked the Defendants and the other occupants “whose gun is it?” When a defendant requests to speak to counsel, that triggers an obligation on the state authority to refrain from eliciting evidence from the detainee until they have had an opportunity to consult with counsel: R. v. Bartle, [1994] 3 S.C.R. 173, 19 O.R. (3d) 802, at p. 192.

[40] Officer Lyle quickly retracted the question, realizing his error, and instructed the arrestees not to answer. No one did. While nothing came of it, this is a breach of the Defendants’ s. 10(b) rights. Other similar breaches occurred when Officer Samson asked the same question in earshot of Mr. St. Louis, and when Officer Lyle asked the Defendants where they were sitting and whether Mr. St. Louis was on conditions. I will explain in my analysis under s. 24(2) however, that these breaches do not warrant excluding the evidence at trial.

Alleged Breach #8 – The failure to report to justice on the seizure of the Louis Vuitton bag containing $12,000 in cash and other items was a breach of Mr. St. Louis’ s. 8 Charter rights

[41] Section 489.1(1) of the Criminal Code imposes a duty on police officers to report to a justice to determine if the items seized should be returned or detained. Section 489.1(3) of the Criminal Code requires the police to fill out Form 5.2 describing the authority under which the seizure was made, the thing seized and where and how it was being detained. Section 490 authorizes the court to detain seized items, but also recognizes a duty to return them to their lawful owners if no exceptions apply: R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737, at paras. 15, 18-24. A failure to file a report to justice results in the unlawful detention of Mr. St. Louis’ items: Garcia-Machado, at paras. 44-45.

[42] In this case, Officer Samson failed to file a report to justice for a satchel that contained Mr. St. Louis’ personal items and $12,000 in cash. The cash bundle is in TPS custody in a money storage safe with the major crimes unit. The satchel and the remaining contents remain in TPS’ custody. The Crown argues that the report “fell through the cracks” and that the defence was purposeful in failing to take steps to address the return of Mr. St. Louis’ items.

[43] Whether Mr. St. Louis took steps or not, the failure to report to justice is a breach. As Mr. Decock argues, the obligation to report to justice is an obligation to the court. It is part of a system of checks and balances in the criminal justice system to oversee police seizures. It is not simply a paper exercise: R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 45. As of the date of this application, I have no evidence that the report has been filed.

Alleged Breach #9 – There was no improper questioning of Mr. Bajraktari before exercising right to counsel

[44] Mr. Bajraktari alleges in an affidavit that when he was booked, he was asked whether he had taken any drugs or alcohol, had any mental health issues, had any money on him and whether he was wearing anything of religious significance to him. He was also asked (again) if he wanted to speak with a lawyer. Mr. Bajraktari alleges that these questions violated his s. 10(b) rights and the police’s duty to hold off until he spoke to counsel. I do not find that these questions were aimed at eliciting evidence related to his arrest or the circumstances of his arrest for firearms offences. I find no violation of s. 10(b).

Section 24(2) analysis does not exclude the evidence

[45] The TPS breached the Defendants’ Charter rights when they failed to hold off from eliciting evidence after arrest. The TPS breached Mr. St. Louis’ rights when they failed to report to justice on the Louis Vuitton satchel and its contents.

[46] The Defendants argue that the firearm and cash should be excluded because they were obtained in a manner that infringed or denied their Charter rights. As in R. v. Fareed, 2023 ONSC 1581, 525 C.R.R. (2d) 112 these violations occurred after the TPS found the gun and the cash. I adopt Molloy J.’s reasoning in Fareed, at paras. 57-58 that the gun was “obtained in a manner that violated” the Charter because it was part of the same chain of events. The breaches flowed from the seizure of the firearm and the resulting arrest: Fareed, at paras. 57-58 citing R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 56, 72. I am satisfied that the threshold requirement of s. 24(2) is met.

[47] Considering the Charter breaches, does admission of the gun and the cash bring the administration of justice into disrepute? No. In so deciding, I consider the three Grant factors (Grant, at para. 71):

1. The seriousness of the Charter-infringing conduct;
2. The impact of the breach on the Charter-protected rights of the Defendants; and
3. Society’s interest in the adjudication of the case on its merits.

[48] The Officers’ failure to hold off was serious because the questions went to the core of the charges the Defendants were facing. However, it had no impact on the Defendants’ s. 10(b) Charter rights. Officer Lyle immediately recognized after asking questions post-arrest that he ought not to have done so. He instructed the Defendants not to answer and in fact no one answered or incriminated themselves. Neither Defendant responded to Officer Samson’s question of whose gun it was. The violation favours exclusion, but only slightly.

[49] The failure to report to justice was negligent but not purposeful. I agree with the Crown that it is not a serious breach. It also had no impact on the Defendants. Had the TPS filed the report to justice for the contents of the Louis Vuitton satchel, Mr. St. Louis might have received his personal items back (comb, watch, keychain with lighter, cannabis and rolling paper) but would likely have not received back the $12,000 in cash. The impact on Mr. St. Louis is negligible. The violation favours exclusion of the evidence as against Mr. St. Louis, but only slightly.

[50] Society would favour having this case adjudicated on its merits. Excluding the gun and the cash would gut the Crown’s case and it likely could not proceed. This favours inclusion.

[51] This takes me to the weighing of the factors. I am mindful of Molloy J.’s concerns in Fareed, at para. 81 about the gravity of failing to report to justice. She notes that the failure to report to justice goes to the core of the integrity of the administration of justice, especially in a warrantless search: Fareed, at para. 84. The failure to report does not tip the balance in this case, however. The long-term repute of the administration of justice does not favour exclusion, especially since the violations occurred after the gun and cash were lawfully located, and the impact on the Defendants was minimal. On the contrary, excluding the evidence in this case would tarnish the reputation of the judicial system.

[52] For these reasons, I dismiss the Defendants’ application.

P.T. Sugunasiri J.

Released: August 12, 2024

[1] The TPS query log (Ex 9), the Ultramar video timestamps (Ex 2), and Officer Samson’s ICC timestamps (Ex 3) are not calibrated but are close enough that I have no concern that the officers ran the plates and received results about vehicle and plating restrictions before approaching the vehicle. The TPS log results are stamped 20:58:51. The ICC shows Officer Samson moving within one foot of the Nissan from 8:59:12 to 8:59:16. The ICC audio records him repeating some of the results found at Exhibit 9 at 8:59:21. Officer Samson greets the front seat occupants at 8:59:36 and addresses the driver at 8:59:37.

[2] The female passenger had returned to the vehicle from inside the gas station by this time and remained outside the vehicle.

[3] This can be seen later when the ICC video shows Officer Samson opening the back passenger door and Mr. St. Louis exiting. The window is clearly open, and I infer from the totality of the video that it was open the whole time that Officer Samson was interacting with them.

[4] The Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1 (“CCA”) has a similar search provision allowing for warrantless searches for cannabis pursuant to ss. 12(1) and 12(3) where there are reasonable grounds to believe that there is unsealed cannabis in the vehicle accessible to the driver or its occupants.

[5] Indeed, the police also located a bottle of Absolut Vodka that formed part of the report to justice filed by Officer Samson on December 12, 2022 (Ex. 5).