Overview

[1] The Defendant, Mohamad Riahi, was wanted in connection with two counts of attempted murder and two counts of discharge with intent to wound, among other charges, in relation to a shooting that took place in August 2019. On June 11, 2022, based on information that the Defendant was staying at unit 3106, 29 Singer Court (the “Unit”) in Toronto, officers of the Toronto Police Service (the “TPS”) executed a Feeney warrant to arrest the Defendant. During the course of the dynamic entry, Mr. Riahi sustained an injury to his lip that later required treatment at the hospital.

[2] After Mr. Riahi was arrested and while paramedics with the TPS Emergency Task Force (ETF) attended to him, investigators from the Major Crimes Unit (the “MCU”) searched a black backpack found in the Unit. They found a large Ziploc bag containing a substance they suspected to be cocaine and a bundle of cash.

[3] Police then obtained a search warrant for the Unit. The search of the Unit and the backpack yielded quantities of fentanyl, crack cocaine, oxycodone, digital scales, and $4,074 in Canadian currency, among other items. In the Unit, police also located a loaded, Glock semi-automatic firearm, over-capacity magazines and ammunition.

[4] The Defendant is charged with multiple counts of possession for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act and possession of proceeds of crime and firearm related charges under ss. 92(2), 95(1), 117.01(1) and 354(1)(b) of the Criminal Code, R.S.C. 1985 c. C-46 (the “Code”). The attempted murder and related charges stemming from the August 2019 shooting were eventually withdrawn by the Crown.

[5] In this proceeding, the Defendant brings an application under ss. 7, 8, 10(b) and 11(d) of the Canadian Charter of Rights and Freedoms (the “Charter”) to exclude from evidence the items seized from the backpack and the firearm, ammunition and drugs seized from the Unit. In the alternative, the Defendant seeks a stay of the proceedings. In brief, Mr. Riahi argues that the police officers used unreasonable and excessive force in arresting him. He further argues that the search of the backpack was illegal and that his rights to counsel were breached by the unreasonable delay in facilitating a call to his lawyer.

[6] On the first day of the hearing, the Defendant re-elected to be tried by judge-alone. The parties then agreed to have the Charter application and trial proceed before me as a blended proceeding, with all evidence called admissible on both the Charter application and trial.

Issues

[7] The issues raised in this proceeding are as follows:

(a) Did the police use excessive force in arresting the Defendant, in breach of his rights under s. 7 of the Charter?

(b) Were the Defendant’s rights under s. 8 of the Charter breached as a result of the search of the backpack and the Unit?

(d) If the Defendant’s Charter rights were breached, should the evidence seized from the backpack and the Unit be excluded under s. 24(2) of the Charter?

(e) Alternatively, should this court grant a stay?

(f) Has the Crown proven the firearm and drug offences with which the Defendant has been charged beyond a reasonable doubt?

Factual Background

[8] The Defendant was wanted in connection with two counts of attempt murder and related firearm charges in connection with a shooting that took place in August 2019. The Defendant had evaded police for three years.

[9] Based on information obtained from tracking data and location-based data associated with a cell phone that police believed the Defendant was using, MCU investigators believed that Mr. Riahi was residing at a unit at 29 Singer Court. On June 10, 2022, officers of the MCU obtained a Feeney warrant for the arrest of the Defendant.

[10] DC Wayne MacDonald of the MCU produced a briefing package that included a photograph and description of the Defendant and the nature of the charges for which he was wanted. On June 10, 2022, DC MacDonald briefed members of the ETF team tasked to execute the warrant.

[11] The warrant was executed at 6:57 a.m. on June 11, 2022. At that time, the door of the Unit was breached using a mechanical device. The officers believed that the Defendant had been pushing back on the door. Once the door was breached, officers of the ETF team then proceeded to enter the Unit. Mr. Riahi was in the entry area, in what officers described as a “push-up position.” During their entry, three ETF officers kicked or stomped on the Defendant, who they believed was trying to get up from the floor. Mr. Riahi sustained an injury to his lip.

[12] At 6:58 a.m., ETF paramedics were called into the Unit to attend to Mr. Riahi, who had been handcuffed and put in a chair. The Unit was deemed clear at 7:01 a.m., and MCU investigators entered. At 7:03 a.m., DC Ricardo Burke of the MCU advised the Defendant of the reason for his arrest and his rights to counsel. Mr. Riahi provided DC Burke with his lawyer’s name and stated that he worked downtown.

[13] After the Unit was cleared, DC MacDonald located a black backpack in the Unit. He opened the backpack and found a green reusable grocery bag in it. He opened the green reusable bag and located a Ziploc filled with a white substance that he believed to be cocaine and a stack of cash. At that point, DC MacDonald stopped searching the bag and sought advice from Detective Lipkus, who instructed DC Burke to apply for a CDSA search warrant for the Unit. DC Burke returned to the station to begin drafting the Information to Obtain (the “ITO”).

[14] At 7:41 a.m., two uniformed officers transported Mr. Riahi to North York General Hospital for treatment, where he received four stitches to his lip. The officers left the hospital for the division with the Defendant at 9:15 a.m. and arrived at 9:24 a.m. The Defendant was paraded and booked at 9:50 a.m. A call to his counsel of choice was made at 10:14 a.m.

[15] The police’s first request for a search warrant was denied by Justice of the Peace Mumby (the “Justice”) on the basis that the search of the backpack appeared to be in breach of the Defendant’s Charter rights. DC Burke consulted with DC MacDonald and revised the ITO to include further information regarding the need to search the backpack to confirm Mr. Riahi’s identification and to locate a health card. At 5:35 p.m., the search warrant was authorized by the Justice.

[16] The search of the Unit and backpack by MCU investigators on June 11, 2022 led to the discovery of the following items:

• 28.74 grams of cocaine;

• 7.1 grams of crack cocaine;

• 137.59 grams of fentanyl;

• 355.88 grams of phenacetin, a cutting agent;

• A 27 Gen 5 Glock .40 S&W semi-automatic prohibited handgun loaded with 10 rounds of ammunition, with one round in the chamber;

• Two 24-round extended magazines;

• 210 rounds of ammunition;

• A speed loader;

• A gold cash counter;

• A blender with cocaine residue;

• Various pharmaceutical tablet bottles with labels scratched off, later found to contain nine oxycodone tablets, 42 aderall tablets, 9 temazepam tablets and 19 clonazepam tablets;

• Two digital scales; and

• A gold iPhone and three other cell phones.

[17] After the search warrant was executed, Mr. Riahi was advised of the further charges against him and a call to counsel was facilitated.

[18] The Defendant seeks to exclude all evidence seized from the backpack and Unit.

Analysis

Did the Police use Excessive Force in Arresting the Defendant?

[19] The Defendant alleges that police officers breached his rights under s. 7 of the Charter by using unreasonable and excessive force in arresting him.

[20] The Crown submits that the use of force by police was reasonable, necessary, and proportionate in the circumstances because the Defendant was resisting and not obeying the officers’ commands, thereby posing a flight risk and a risk to the safety of the officers.

The Applicable Principles

[21] The use of excessive force in arresting a person is a breach of s. 7 of the Charter right to security of the person: R. v. Walcott (2008), 57 C.R. (6th) 223 (Ont. S.C.), at para. 22.

[22] Section 25 of the Criminal Code governs the use of force by police, and reads as follows:

Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,

(b) as a peace officer or public officer,

(d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

[23] In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 32-34, the Supreme Court of Canada explained that the requirements of “reasonable grounds” and “as much force as necessary” imported a subjective-objective test. In other words, not only did the officer have to believe that force was necessary, but that belief had to be objectively reasonable. The degree of force used by police must be proportionate, reasonable, and necessary: Nasogaluak, at para. 32.

[24] In assessing the reasonableness or necessity of the use of force, a court must take into account all the circumstances, including:

(i) whether the suspect was acting in a hostile manner towards the police, resisting arrest or failing to comply with an officer’s arrest procedure;

(ii) the relative sizes and weights of the officer and the suspect;

(iii) whether the officer was at risk of harm;

(iv) whether the police knew the suspect had a history which might represent a threat to them; or

(v) whether the police understood that weapons might be on the premises.

Walcott, at para. 24.

[25] The police decision to use force is to be judged by what was or should reasonably have been known to them at the time: R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 23. In addition, a “certain amount of latitude is permitted to police officers who are under a duty to act and must often react in difficult and exigent circumstances”: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 73.

[26] Once an accused person demonstrates that force was used in effecting an arrest, the burden shifts to the Crown to demonstrate that the use of force was justified: R. v. Davis, 2014 SCC 4, [2014] 1 S.C.R. 78, at para. 1, affirming R. v. Davis, 2013 ABCA 15, at para. 43

Application to the Facts

The Defendant’s Evidence

[27] The Defendant testified that he returned to the Unit in the early morning hours and was going to take a nap on the couch. Mr. Riahi testified that the Unit was rented by a friend and that he and others would stay there from time to time. Before laying down on the couch, he put the cell phone that he “was walking with” and wallet on a nearby coffee table and draped his track suit over a chair beside the couch. Mr. Riahi testified that he could not sleep because he heard a lot of noise in the hallway. He testified that he went to the door and saw that it was slowly pushing inwards.

[28] The Defendant testified that he then heard “police” and “warrant”, so he got down on the floor. Mr. Riahi denied pushing against the door or otherwise trying to prevent the door from being breached. He testified that he saw a uniformed officer coming in with a long gun pointed at him. The officer told him to get down, so he laid on his stomach with his arms and legs stretched out to the sides. He then heard a loud bang and waited for someone to arrest him.

[29] Mr. Riahi denied trying to get up. He testified that as he lay there, he felt an officer stomp on his head. He testified that his “eyes went black” and believes that he was briefly unconscious. Mr. Riahi testified that he thought he came to when he felt another officer stomp on his head. He then felt another officer stomp his head twice. Mr. Riahi testified that he felt approximately 4-5 strikes to his head. Mr. Riahi testified that at no time did he raise his head or try to get up. He testified that what the officers believed to be him trying to get up was his head “bouncing” from the floor with the force of each strike. Mr. Riahi testified that he saw blood on the floor and was shocked and terrified because he believed he was complying with the officers’ commands, but they were still striking him.

[30] Mr. Riahi testified that he was handcuffed to the rear while lying on the floor. He remained on the floor for a couple of seconds when he heard the other officers give the all-clear. He then told an officer that his lip was bleeding. The officer pulled him up by the handcuffs and sat him down in a chair. The paramedics were then brought in to treat him. Mr. Riahi testified that after he was treated by paramedics, a uniformed officer moved him to the couch, where he sat until a plain clothes officer, who he believes to be DC Burke, read him his rights.

[31] Mr. Riahi testified that at the hospital, he waited with the two uniformed officers. When the doctor came to treat him, Mr. Riahi told him that he had an injury to his lip and that he was also bleeding on his head. He testified that the doctor stitched his lip while he leaned forward and the uniformed officers held his arms. In relation to his head, Mr. Riahi testified that he understood from the doctor that no stitches or staples were needed for the back of his head because there were just little cuts.[^1] On cross-examination, Mr. Riahi testified that he did not tell the doctor that he had been unconscious for a while because the doctor did not ask him.

[32] The injury to Mr. Riahi’s lip is visible on the recording from the body-worn camera (the “BWC”) of PC Robert Haggart, one of the officers who transported the Defendant to the hospital. A portion of his upper lip, or a “flap” can be observed hanging from the rest of his lip. The injury required four stitches to repair. Mr. Riahi testified that because of the stitches, he could not eat while in custody and lost approximately 10 pounds. There is a visible scar on Mr. Riahi’s upper lip, and it remains visibly swollen in the area where he sustained the injury more than two years after the fact. Mr. Riahi testified that he is reminded of the incident every time he looks in the mirror.

The Officers’ Evidence

[33] At 6:57 a.m., PC Mark Potts of the TPS Emergency Task Force used a hydraulic device known as a “saint” to breach the door of the Unit. PC Potts testified that while he was employing the device, he felt resistance against the door. PC Potts saw a head through the opening of the door and believed that the individual inside the Unit was pushing on the door. PC Potts testified that he advised the other members of the ETF team that someone was holding the door. The saint eventually breached the door, which opened to the inside of the Unit. PC Potts then went to the back of the line of officers waiting outside the Unit.

[34] PC Simon Leung was the first officer to enter the Unit. He testified that he had a long gun drawn when he entered. At the time, the officers did not know if there were other individuals in the Unit. PC Leung issued commands to any occupants to get down on the floor and to show their hands. PC Leung testified that he saw the Defendant on the floor on his hands and knees in what he described as a “push-up position.” He testified that he believed that Mr. Riahi was trying to get up and was not obeying the command to get on the floor. PC Leung testified that he issued a “distractionary” strike with his leg to the Defendant’s arms. He then continued into the Unit.

[35] PC Ryan was the next officer into the Unit. He testified that he saw a person getting down on the ground, and that he threw a distraction device into the Unit just beyond the person. A distraction device is a device that emits a loud bang and bright light to momentarily distract the person being arrested and give officers time to enter. PC Ryan testified that before throwing the device, he looked in to ensure that it would not pose a risk to anyone in the Unit. PC Ryan then got behind PC Leung, who attempted to make entry. PC Ryan testified that he saw a male, the Defendant, trying to get up on all fours. He observed PC Leung kick the Defendant and enter the Unit.

[36] PC Ryan testified that after PC Leung kicked Mr. Riahi, he was still moving and attempting to get up. Because his role was to protect PC Leung, PC Ryan testified that he stomped on the Defendant in the back or shoulder area while directing him to get on the ground. PC Ryan testified that he observed a “small amount” of blood on the floor. When asked to estimate the degree of force he used, PC Ryan estimated a four to five on a scale of ten. On cross-examination, PC Ryan denied that he stomped on Mr. Riahi’s head in haste while trying to get into the Unit.

[37] PC Samuel Lawson was the third ETF officer in the line-up. PC Lawson testified that before he entered, he heard commands that led him to believe that Mr. Riahi was not staying on the ground. However, he did not see PC Leung or PC Ryan use force against Mr. Riahi. PC Lawson testified that he stepped over the Defendant and entered the Unit.

[38] PC Darryl Guy was the fourth person in the line-up. He testified that he was tasked to use “less lethal” options, however, he was holding a long gun that day. PC Guy testified that when PC Potts was employing the saint to breach the door, he believed someone was pushing against the door because he observed that it was “flexing” back. PC Guy testified that the strategy is for ETF officers to “flood” the Unit as quickly as possible. However, even though he entered soon after PCs Leung, Ryan, and Lawson, he testified that he did not see anyone apply force to Mr. Riahi. PC Guy testified that he stepped over Mr. Riahi, who was lying on the floor, to get into the Unit. He gave no evidence as to whether Mr. Riahi was moving or attempting to get up.

[39] PC Randy Dodson went into the Unit after PC Guy. PC Dodson testified that once the door was breached, they all moved into the Unit quickly. He had a pistol in his hand, which he pointed at Mr. Riahi. PC Dodson testified that he observed Mr. Riahi on the floor with his head toward the door. He testified that Mr. Riahi was in a “push-up position” and that it looked like he was going to push past them and out the door. However, he also testified that the Defendant had his left hand under him and that, as a result, he believed he could be armed. PC Dodson testified that he forced Mr. Riahi to the ground with his foot by placing his foot on his upper back or shoulder area. PC Dodson admitted that he pushed him to the ground forcefully and believed that he caused the injury to Mr. Riahi’s lip.

[40] Sergeant Eric Reimer went into the Unit after PC Dodson. He also had his pistol out. Sgt Reimer testified that he saw Mr. Riahi on the floor at the door. He testified that the Defendant was on his hands and knees trying to get back up. Sgt Reimer testified that he saw PC Dodson make a single “distractionary” strike with his foot. He testified that he did not see the area of contact, but that it looked like PC Dodson’s foot made contact with the Defendant’s face area. He then told PC Dodson that he would secure the Defendant and proceeded to handcuff him. Sgt Reimer testified that based on the information received at the briefing, he believed the Defendant to be armed. However, he admitted on cross-examination that he did not conduct a pat down search. He was not aware whether any of the other officers had.

[41] Sgt Reimer testified that he saw blood on Mr. Riahi’s face. He asked PC Potts, who was the last to enter the Unit, to put him on the couch so an ETF paramedic could attend to him. PC Potts testified that when he entered, the Defendant was on the ground and Sgt Reimer was putting handcuffs on him. PC Potts testified that after being cuffed, the Defendant was moving around and trying to sit up. He saw “a lot of blood” on the floor. PC Potts testified that he noticed that Mr. Riahi was bleeding from the mouth, so he took him to a chair and called in the ETF paramedics right away. The evidence is that ETF paramedics were called into the Unit at 6:58 a.m., or one minute after the door was breached.

[42] PC Potts was not involved in clearing the Unit and stood by Mr. Riahi while he was being treated by the paramedics. PC Potts testified that Mr. Riahi said he was cold, so he had a pair of pants searched and put them on him.

[43] Sgt Reimer testified that he brought the MCU investigators in after the paramedics saw Mr. Riahi. PCs Leung, Lawson, and Guy testified that the Unit was turned over to investigators at 7:01 a.m.

Use of Force Reports

[44] Sgt Reimer directed PC Leung to complete a team Use of Force Report. PC Leung testified that he completed the Use of Force Report based on information he received from Sgt Reimer. He did not inquire with other members of the ETF team about their use of force against Mr. Riahi. He believed that Sgt Reimer had asked the other members of the ETF team about their use of force. However, on cross-examination, Sgt Reimer admitted that he did not ask other team members about their use of force.

[45] On the substance of the team Use of Force Report, PC Leung testified that he believed he completed it correctly when he checked the box for “empty hand techniques – soft”. He explained that he believed “soft” to refer to the use of a hand or foot, while “hard” referred to the use of an elbow or knee. Sgt Reimer, however, testified that the Use of Force Report should have indicated “empty hand technique – hard” instead of “empty hand techniques – soft” because any strikes with a hand or foot are “hard”. Sgt Reimer explained that grabbing and holding are considered “empty hand techniques - soft.”

[46] Sgt Reimer testified that he was aware that PC Ryan had used force on Mr. Riahi because he had told him, but he was not aware that PC Leung had used force on the Defendant.

[47] Sgt Reimer testified that he also directed that PC Dodson complete an individual Use of Force Report because he understood that PC Dodson was the one who had caused the injury to the Defendant that required medical treatment. PC Dodson testified that he completed an individual Use of Force Report because he believed he was the officer who caused the injury to Mr. Riahi’s lip.

[48] The individual Use of Force Report states that a firearm was pointed at Mr. Riahi and that “empty hand techniques – hard” were employed. The reasons given were “effect arrest”, “prevent escape”, “protect public”, and “protect self.” The nature of the injury is described as “minor.” No narrative is provided. On cross-examination PC Dodson admitted that the Use of Force Report could have been more detailed because he had not described the nature of the physical contact with Mr. Riahi.

Findings

[49] As noted above, once the Defendant proves that force was used, the burden falls to the Crown to demonstrate that the use of force was not excessive. In this case, it is undisputed that force was used.

[50] I begin by noting that the Feeney warrant authorized a dynamic entry. The defence has not raised the choice of a dynamic entry as an issue on the application. Given that the decision had been made to use a dynamic entry, the ETF officers were aware that they could be faced with a potentially high-risk situation. The Defendant was wanted on two counts of attempted murder in relation to a shooting and had evaded police for almost three years. The firearm that was believed to have been used in the shooting had not been recovered. Consequently, police believed that Mr. Riahi remained in possession of a firearm. Police also had information that the Defendant had previously fled from police.[^2] In addition, based on the information that ETF officers obtained from the briefing with the MCU investigators, they did not know whether there would be other people in the Unit when they went to execute the warrant.

[51] I accept the testimony of PC Potts that when he was attempting to breach the door, he felt resistance while deploying the saint and that he advised his fellow team members. PC Guy, who had used the saint “hundreds” of times, also testified that they believed that the Defendant was pushing back on the door because it took longer than it normally would have to breach the door.

[52] As will be further detailed in these reasons, I have significant concerns about the credibility and reliability of the Defendant’s evidence. On cross-examination, Mr. Riahi was frequently evasive, defensive, and argumentative. I find that while Mr. Riahi initially tried to push against the door, he then got on the ground as commanded by police. Mr. Riahi’s testimony that when the first officer, PC Leung, entered he was on his way down to the ground is consistent with PC Ryan’s testimony that he saw the Defendant going to the ground when he threw in the distraction device. When PC Leung entered the Unit, Mr. Riahi was not yet flat on the ground. I accept the testimony of PCs Leung and Ryan that Mr. Riahi’s position caused them to be concerned about whether he was attempting to get up and therefore whether he could pose a risk to their safety or a flight risk.

[53] I recognize that trying to flee would not have been a rational choice, given that the Unit was on the 31st floor of the building and that there were numerous ETF officers flooding the Unit, many with firearms pointed at him as they entered. However, in the circumstances, it was not unreasonable for the officers to believe that Mr. Riahi might try to flee, given the serious charges he faced and the officers’ information that he had previously fled from police during a vehicle stop, as confirmed by Mr. Riahi in his testimony.

[54] Given the concerns about Mr. Riahi’s position and the need to enter the Unit quickly and safely, and the risk posed by other potential occupants, I accept that PC Leung’s evidence that he felt it necessary to employ a distraction strike to Mr. Riahi to get him to stay down so he could step over him and enter the Unit. I find, however, that he kicked Mr. Riahi in the head or face area and not in the arms. I find PC Leung’s description of using his “legs” to kick Mr. Riahi’s “arms” somewhat incongruous with his testimony that he kicked the Defendant once. In that case, because Mr. Riahi had each arm out to his sides, he would have used one leg and would only be able to strike one arm and not both.

[55] On cross-examination, PC Leung admitted that while he believed he struck Mr. Riahi’s arms, it was possible that he kicked Mr. Riahi in the head. When PC Ryan entered immediately after PC Leung, he observed blood on the floor. Based on the evidence, the only source of blood was Mr. Riahi’s lip. Had PC Leung kicked Mr. Riahi’s arms, this would not have caused his lip to bleed. Needless to say, the head is a vulnerable area and strikes to the head should generally be avoided because they could lead to serious injury.

[56] I also accept PC Ryan’s testimony that he stomped on Mr. Riahi’s back or shoulder when he entered the Unit because he needed to ensure that PC Leung could continue safely into the Unit and Mr. Riahi was still moving. I accept that both officers used their feet as opposed to their hands to kick or stomp Mr. Riahi because they were holding long guns with both their hands.

[57] Based on Mr. Riahi’s evidence, I have some concern that he was in a state of shock, disorientation, and pain and that his movement on the floor could have been misinterpreted by the officers as attempts to get up. During his testimony, Mr. Riahi instinctively raised his head while describing the sound of the distraction device and his reaction to it. On cross-examination, however, he denied raising his head when the device made a loud noise. It is possible that Mr. Riahi’s head came up unintentionally, whether in reaction to the device or after being struck. I recognize, however, that the officers had to enter the Unit quickly and deal with other potential occupants and were not required to wait and see whether Mr. Riahi was in fact getting up, which could have posed a risk to their safety.

[58] The defence argues that the evidence of the ETF officers is not credible because they employ the same generic terms such as “distractionary strike” and “push-up position”. On cross-examination, it was suggested that the officers consulted before drafting their notes. However, the testimony of PCs Leung, Ryan, Guy, Lawson, Potts and Sgt Reimer was not significantly challenged on cross-examination, and as such, I find no basis upon which to reject their evidence.

[59] In the circumstances, given the potentially high-risk situation they were entering, I am mindful that the actions of police are not to be held to a standard of perfection. It would not be appropriate to measure the degree of force with exactitude and judge the police’s actions with the benefit of hindsight, given that the circumstances were dynamic and dangerous: Nasogaluak, at para. 35; R. v. DaCosta, 2015 ONSC 1586, at para. 98.

[60] In my view, based on the totality of the circumstances, I find that the force used by police was reasonable, proportionate and necessary to the threat that Mr. Riahi posed as it pertained to the first two strikes to Mr. Riahi, as administered by PCs Leung and Ryan.

[61] I am mindful of the cautions against parsing the actions of police in exigent circumstances, However, I have concerns about PC Dodson stomping on Mr. Riahi’s head, which is likely to have caused or exacerbated the injury to his lip. In my view, the further strike by PC Dodson was not necessary or proportionate.

[62] First, it is worth noting that two officers, PCs Lawson and Guy entered after PCs Leung and Ryan but before PC Dodson. Neither officer kicked nor struck Mr. Riahi. I find that had Mr. Riahi been trying to get up at that stage, it is unlikely that both officers would have continued into the Unit without taking further action. PC Guy testified that the doorway was a “dangerous” and “volatile” area, yet he stepped over the Defendant and continued into the Unit. Similarly, PC Lawson stepped over Mr. Riahi and proceeded to clear the kitchen area of the Unit.

[63] Second, I reject PC Dodson’s testimony that he stomped on Mr. Riahi’s back or shoulder area. Sgt Reimer testified that he observed contact between PC Dodson’s foot and what he believed was Mr. Riahi’s face. I find that PC Dodson stomped on Mr. Riahi’s head or face. A stomp on the back or shoulder would have served the same purpose of forcing him down but was much less likely to have caused injury to Mr. Riahi.

[64] Third, PC Dodson admitted that he stomped “forcefully” on Mr. Riahi. A forceful stomp to the head or face area risked causing Mr. Riahi a much more serious injury than the injury to his lip. PC Dodson delivered the stomp after the Defendant had already been struck two times, by PCs Leung and Ryan. PC Ryan assessed the level of force that he used as less than one-half of his full strength, which raises the question as to why PC Dodson found it necessary to use as much force as he did. Mr. Riahi is 5 feet and 3 inches tall and weighs between 120 to 125 pounds; he is much smaller than any of the officers. He was greatly outnumbered. Moreover, while the ETF officers believed he could be armed when they first went in, there was no evidence to suggest that he was armed or that they believed that he was when force was used. PC Ryan admitted that they would not have rushed in if they believed that Mr. Riahi was armed. Based on the timing, location and degree of force used by PC Dodson, I find in the circumstances, the level of force used by him was excessive.

[65] Finally, I have concerns about the credibility and reliability of PC Dodson’s account. In my view, PC Dodson had to have known that he had stomped on Mr. Riahi’s head or face. A third-party observer, Sgt Reimer, thought he saw PC Dodson’s foot come into contact with Mr. Riahi’s face. As the person who administered the strike, PC Dodson would have both seen and felt the area of contact. His belief or acceptance that he caused the injury to Mr. Riahi’s lip is inconsistent with his testimony that he stomped Mr. Riahi on the back or shoulder. PC Dodson’s testimony about Mr. Riahi’s body position was also inconsistent in that he testified that Mr. Riahi was in a push-up position but also that his left hand was under his body to suggest that he believed he could have a weapon. I further note that PC Dodson provided a will-say statement dated April 25, 2023, because his memobook notes could not be located. The will-say states only that he employed a “distractionary strike” and lacks details that PC Dodson testified to at trial, such as Mr. Riahi’s body position and the nature of the force used. I find it unlikely that PC Dodson’s recollection of such details improved over time.

[66] In the end, the ETF officers were able to handcuff the Defendant within one minute of breaching the door. Based on the totality of the circumstances, the Crown has not discharged its burden to demonstrate that the officers’ use of force was necessary, reasonable, and proportionate. The police use of force against Mr. Riahi, specifically, the stomp by PC Dodson to Mr. Riahi’s face, was in breach of the Defendant’s rights under s. 7 of the Charter.

Was the Search Lawful?

[67] The Defendant submits that the police breached his rights under s. 8 of the Charter when they searched the backpack found in the Unit.

[68] The Crown submits that the search of the backpack was a lawful search incident to arrest and was justified because the officers had to verify that the Defendant’s identity. The Crown argues that the police were entitled to verify that they arrested the right person because the Defendant had provided them with a false name and because they knew he had a twin brother. In addition, the Crown maintains that police were looking for the Defendant’s health card so he could obtain medical treatment at the hospital.

The Applicable Principles

[69] Section 8 of the Charter states that “everyone has the right against unlawful search and seizure.” The purpose of s. 8 is to "protect individuals from unjustified state intrusions upon their privacy" which requires preventing unjustified searches before they happen through pre-authorization: Hunter v. Southam Inc., [1084] 2 S.C.R. 145 at p. 160

[70] A search will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which the search was carried out is reasonable: R. v. Collins, [1987] 1 S.C.R. 265, at p. 278.

[71] In respect of s. 8 of the Charter, once the Defendant establishes that the search was without a warrant, the onus shifts to the Crown to demonstrate that the search was reasonable and justified in the circumstances. A warrantless search is presumptively unreasonable. As such, the Crown must rebut the presumption by showing that the search was a valid search incident to arrest, which requires that:

(i) the individual has been lawfully arrested;

(ii) the search is truly incidental to the arrest in the sense that it is for a valid law enforcement purpose connected to the arrest; and

(iii) the search is conducted reasonably.

R. v. Stairs, 2022 SCC 11, at para. 35.

[72] The case law has identified three valid law enforcement purposes: (i) police and public safety, (ii) preventing the destruction of evidence, and (iii) the discovery of evidence that may be used at trial: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 75. Those categories, however, are not closed: R. v. Sureskumar, 2023 ONCA 705, at para. 11.

[73] The police’s law enforcement purpose must be subjectively connected to the arrest, and the officer’s belief that the purpose will be served by the search must be objectively reasonable: Stairs, at para. 37.

[74] For a search incident to arrest to be lawful, police need not have reasonable and probable grounds. However, they “must have some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable”: R. v. Caslake, [1998] 1 S.C.R. 51, at para. 25. The important consideration is the link between the location and purpose of the search and the grounds for the arrest: R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 49.

[75] In Stairs, at para. 8, the Supreme Court modified the common law standard for search incident to arrest as it applies to a person’s home as follows:

• The police must have reason to suspect that there is a safety risk to the police, the accused or the public which would be addressed by a search; and

• The search must be conducted in a reasonable manner, tailored to the heightened privacy interests in a home.

[76] A search incident to arrest extends to the surrounding area of an arrest. In Stairs, at para. 59, the Supreme Court distinguished between two subcategories within the surrounding area of an arrest: (i) the area within the physical control of the person arrested at the time of arrest; and (ii) areas outside the physical control of that person, but which are part of the surrounding area because they are sufficiently proximate to the arrest. The task of determining whether a particular area is part of the surrounding area of the arrest is a contextual and case-specific inquiry that falls to the trial judge: Stairs, para. 60.

[77] The Supreme Court held, at para. 61, that police must meet a higher standard of suspicion to search the area outside the arrestee’s physical control:

When the police make an arrest, under the existing common law standard, they may conduct a pat-down search and examine the area within the physical control of the person arrested. But when the police go outside the zone of physical control, the standard must be raised to recognize that the police have entered a home without a warrant. In these circumstances, it is not enough to satisfy the existing common law standard, which requires some reasonable basis for the search. Rather, the police must meet a higher standard: they must have reason to suspect that the search will address a valid safety purpose…

[78] In summary, a search of a home incident to arrest for safety purposes will comply with s. 8 of the Charter when the following requirements are met:

(1) The arrest was lawful.

(2) The search was incident to the arrest. The search will be incident to arrest when the following considerations are met:

(a) Where the area searched is within the arrested person’s physical control at the time of the arrest, the common law standard must be satisfied.

(b) Where the area searched is outside the arrested person’s physical control at the time of the arrest — but the area is sufficiently proximate to the arrest — the police must have reason to suspect that the search will further the objective of police and public safety, including the safety of the accused.

(3) Where the area searched is outside the arrested person’s physical control at the time of the arrest — but the area is sufficiently proximate to the arrest — the nature and the extent of the search must be tailored to the purpose of the search and the heightened privacy interests in a home.

Stairs, at para. 82.

[79] On the question of whether a search incident to arrest for identification can be considered a valid law enforcement purpose, in Sureskumar, at para. 13, the Court of Appeal found that there is no authority binding on that Court, but noted that cases from this court have found that it is: see R. v. Nunnery, 2006 ONSC; R. v. Singh, 2015 ONSC 6312. In Sureskumar, the Court of Appeal declined to rule on the issue and instead decided the case on the issue of reasonableness. Hourigan J.A. held that in respect of a search incident to arrest, reasonableness refers not only to how the search was carried out, but also encompasses whether the search was necessary.

[80] The Court of Appeal held that the search of the appellant’s vehicle was unreasonable and in breach of the appellant’s s. 8 rights. It was not necessary for the arresting officer to search the appellant’s vehicle and seize his wallet because there were other equally convenient and expeditious means available to confirm the appellant’s identity: Sureskumar, at paras. 18-19.

Application to the Facts

The Evidence

[81] Sgt Reimer testified that after handcuffing the Defendant, he asked for his name. The Defendant responded “Jason”. He then asked for his last name, to which the Defendant responded, “Jason” and asked why the officer needed to know his name. Sgt Reimer testified that at that point, he was “100 percent” certain that the person they had in custody was the target. PC Potts, the ETF officer who stood by the Defendant as he was attended to by ETF paramedics, testified that the ETF paramedics asked Mr. Riahi for his name, and he stated “Jason” and then “Ahmad”.

[82] One of the MCU investigators at the scene, PC Josh Cannon, testified that although he did not speak to Mr. Riahi, he heard him interact with the paramedics and that he “kept referring” to his name as “Jason”. PC Cannon testified that he nonetheless believed him to be the target of the Feeney warrant.

[83] DC MacDonald prepared the briefing package pertaining to the Defendant and briefed the ETF team before the execution of the Feeney warrant. He testified that he entered the Unit at 7:01 a.m., after ETF officers had breached and cleared the Unit. He testified that when he entered the Unit, the Defendant was on the floor in the entrance “arrested and secured by ETF.” DC MacDonald testified that the Defendant was bleeding from the lip and was assisted up and escorted to a chair by ETF officers. DC MacDonald testified that he noted a black bag directly beside Mr. Riahi and “within reach” when he was on the floor.

[84] DC MacDonald testified that as Mr. Riahi was being assessed by ETF paramedics, he asked him for his name. DC MacDonald testified that the Defendant responded “Jason Ahmad.” DC MacDonald testified that he “repeatedly” asked the Defendant to provide his name, but he only provided the name of Jason Ahmad. DC MacDonald further testified that ETF paramedics advised that a health card would be needed to take the Defendant to the hospital.[^3] He testified that he believed the individual to be Mohamad Riahi but that he had never met him and was aware that the photograph in the briefing package was from 2017. He also knew that Mr. Riahi had a twin brother, Ahmad Riahi, but did not know whether or not he was in custody at the time. It is undisputed that Ahmad Riahi was released from custody in May 2022, approximately one month before Mohamad Riahi’s arrest.

[85] On cross-examination, DC MacDonald admitted that his notes reflected that he advised Mr. Riahi multiple times that he knew who he was. DC MacDonald also admitted that he did not search the Defendant for identification or ask any of the officers if they did. However, he maintained in his testimony that the Defendant gave the name of “Jason Ahmad”.

[86] DC MacDonald testified that “at that point” that he saw the black bag in the hallway. At 7:05 a.m., he proceeded to open the bag and search it to locate identification and a health card. When he looked into the bag he saw a green reusable shopping bag. He opened that bag to find a large Ziploc bag containing a white powder that he believed to be cocaine and an elasticized bundle of Canadian currency. DC MacDonald testified that as soon as he found those items, he stopped searching the bag and contacted DC Lipkus because he believed that a search warrant should be sought before continuing to search the bag and the Unit. DC MacDonald testified that he did not find identification for Mr. Riahi in the bag or in the Unit.

[87] DC Burke, who gave the Defendant his rights to counsel at 7:03 a.m., testified that he was certain that the individual he was arresting was Mohamad Riahi. He testified that his belief was based on the photograph in the briefing package and his previous interactions with Mr. Riahi. DC Burke was aware that Mr. Riahi had a twin brother. He testified that based on information received during the briefing, he believed that Ahmad Riahi was in custody at the time. On cross-examination, defence counsel put to DC Burke that he approached the Defendant and said “Mohamad Riahi.” DC Burke agreed and testified that the Defendant did not deny being Mohamad Riahi and did not give him the name, Jason Ahmad.

[88] DC Burke testified that after he was certain that Mr. Riahi understood why he was being arrested, he stepped out of the Unit and spoke to DC MacDonald. He said at that time, DC MacDonald advised him that he located a black bag with a white substance in it that he believed to be cocaine. DC Burke then left the scene to return to the station to prepare a CDSA search warrant. DC MacDonald did not recall having a discussion with DC Burke after discovering the white substance but was aware that DC Lipkus directed DC Burke to begin drafting a CDSA search warrant.

[89] The Defendant denied that he told any of the officers that his name was “Jason” or “Ahmad”. He testified that none of the officers asked him for his name, but that they told him that he was Mohamad Riahi. The Defendant testified that DC Burke told him that he knew he was Mohamad Riahi and that he had been looking for him.

[90] Mr. Riahi testified that he did not see the backpack in the entry when he came into the Unit earlier that morning and did not know where DC MacDonald had retrieved it from. He denied that it was his backpack and testified that the first time he saw it was when a uniformed police officer brought it over and asked if it was his.[^4] Mr. Riahi testified that he did not answer.

[91] In his testimony, Mr. Riahi testified that when he entered the Unit earlier that morning, he put the cell phone that he “was walking with” and wallet on the coffee table by the couch before taking off his track suit, which he laid on a chair by the couch. The search warrant photographs show a wallet on one of the small tables in the living area of the Unit. The wallet contained a health card in the name of Ahmad Adel Riahi, a credit card in the name of Mohamad Riahi and a photograph that the Defendant identified as his brother. Mr. Riahi testified that one of the officers went through his wallet and counted the cash while he was sitting on the couch. However, none of the officers were cross-examined about going through the wallet.

[92] Mr. Riahi testified that none of the officers conducted a pat-down search until just before he was put into the scout car, at which time one of the uniformed officers who was transporting him, PC Haggart or Gribbon, conducted a pat-down search.

Findings

[93] At the outset, I note that the Crown concedes that the search of the backpack was not for the purpose of locating evidence in relation to the offences for which Mr. Riahi was arrested, namely, the attempt murder and other charges. Similarly, the Crown does not argue that the search was conducted for safety reasons.

[94] I turn now to apply the framework articulated in Stairs and summarized above. Because the arrest was lawful, the first requirement is met.

[95] The second question is whether the search was incident to arrest. The search will be incident to arrest when the following considerations are met:

(a) Where the area searched is within the arrested person’s physical control at the time of the arrest, the common law standard must be satisfied.

[96] In my view, the area searched was not within Mr. Riahi’s physical control at the time of the arrest. My conclusion is based on the following findings.

[97] First, I reject DC MacDonald’s evidence that when he entered, Mr. Riahi was lying down in the doorway of the Unit with the backpack was within his reach. The evidence of all the ETF officers is that Mr. Riahi was moved from the entry to a chair to be attended to by paramedics at 6:58 a.m., one minute after the door was breached. By 7:01 a.m. when the Unit was deemed clear and when investigators were permitted to enter, Mr. Riahi was no longer lying in the entry but was sitting on a chair near the kitchen counter. Sgt Reimer testified that he brought the investigators in after Mr. Riahi had been treated by paramedics. One of the investigators, PC Cannon, also testified that Mr. Riahi was seated on a chair when the “all clear” was given.

[98] On cross-examination, DC MacDonald was confronted with the evidence that Mr. Riahi could not have been on the floor when he entered at 7:01 a.m. because he had been placed in the chair at 6:58 a.m. to be treated by paramedics. DC MacDonald denied that he was mistaken and maintained that Mr. Riahi was on the floor and that the backpack was within his reach. However, based on all of the other officers’ evidence, it is simply not possible that DC MacDonald entered the Unit at 7:01 a.m. and that Mr. Riahi was on the floor. In my view, because of his insistence that Mr. Riahi was still on the ground when he entered, which is inconsistent with all of the other evidence, the issue is not simply the reliability of DC MacDonald’s recollection but the credibility of his account. I find that DC MacDonald’s testimony on this issue is not credible.

[99] As a result, there is an absence of credible, reliable evidence as to the location of the backpack. The only person who testified to seeing the backpack in the entry was DC MacDonald. While not all of the ETF officers were asked whether they noticed a backpack when they entered the Unit, those officers who were asked did not recall seeing a backpack in the entry. A number of the ETF officers testified to having to step over Mr. Riahi because the entry was narrow and he was lying across it. If there had also been a backpack in the area, the ETF officers might be expected to have seen it. DC Burke also testified that he did not see a backpack. Mr. Riahi testified that he did not see a backpack in the entry. Based on the lack of evidence as to the location of the backpack when the Defendant was arrested, I am unable to find that it was within his physical control.

[100] The next issue is whether the search, although outside the physical control of that arrested person, was of an area sufficiently proximate to the arrest, such that it is part of the surrounding area of the arrest. As noted above, this is a contextual and case-specific inquiry. In the absence of evidence as to the location of the backpack, I am also unable to find that the area searched was sufficiently proximate to the arrest. Given the small size of the Unit, if there was evidence that the backpack was located in the living area, that could be sufficiently proximate to find that the search was of a surrounding area of the arrest. However, while the backpack was undoubtedly found somewhere in the Unit, there is a lack of evidence as to where it was located.

[101] As a result, the search of the backpack was not a lawful search incident to arrest and I need not consider the third element of the Stairs analysis, that is, whether the nature and extent of the search was tailored to the purpose of the search and the heightened privacy interests in a home.

[102] I pause to note that Mr. Riahi denied that he was residing at the Unit and admitted only that it was a place where he stayed from time to time. Mr. Riahi testified that he moved from place to place and that another individual let him stay at the Unit. I address Mr. Riahi’s connection to the Unit further in these reasons. In respect of the Charter analysis, an accused person is entitled to rely on the Crown's theory in order to establish standing for the purpose of a s. 8 claim: see R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 15. As a result, Mr. Riahi had a heightened privacy interest in the Unit.

[103] In the event that I have erred on the first two elements of the Stairs analysis, I would also find that the third element has not been satisfied. In this case, the police did not have reason to suspect that the search would address a valid safety purpose. It is not clear to me that a search for identification meets the higher standard for the search a dwelling in a surrounding area of the arrest established by the Supreme Court in Stairs, given that this type of search can only be justified on safety grounds: at para. 8.

[104] I need not make a conclusion on this issue because, as was the case in Sureskumar, I am able to determine the matter on the issue of whether the search was conducted reasonably. The stated purpose for the search was to confirm Mr. Riahi’s identity because he had given a false name to police and because the photograph in the briefing package was five years old. Investigators were also aware that Mr. Riahi had a twin brother.

[105] I find that Mr. Riahi did in fact give ETF officers the name “Jason.” This was heard both by two ETF officers, Sgt Reimer and PC Potts and two investigators, PC Cannon and DC MacDonald. The context in which the two ETF officers heard the name Jason was the same as the context in which PC Cannon heard it – when Mr. Riahi was being treated by paramedics. It is unlikely that all four officers would have heard the Defendant give the same name, “Jason” if he had not done so. While the defence argued that DC MacDonald lied in his testimony on this issue, it was not put to the other officers on cross-examination that they had lied or colluded with DC MacDonald. There is no basis upon which to find that they did.

[106] Nonetheless, I find that it was unnecessary for DC MacDonald to search the backpack in order to locate identification to confirm Mr. Riahi’s identity. While the photograph in the briefing package was dated, none of the officers actually believed that they had arrested the wrong individual. The arresting officer, DC Burke, testified that he was certain that the person he arrested was Mohamad Riahi. DC MacDonald also testified that he believed the person to be Mr. Riahi. He admitted that he told Mr. Riahi multiple times that he knew who he was. Sgt Reimer testified that after he spoke with Mr. Riahi, he was 100 percent certain that he was the target. Even if Mr. Riahi gave the names “Jason” and “Ahmad” no one believed that he was anyone other than Mohamad Riahi.

[107] I further note that DC MacDonald used the dated photograph of Mr. Riahi to confirm that Mr. Riahi was residing at 29 Singer Court in advance of obtaining the Feeney warrant and in the briefing package.

[108] In addition, there were other equally convenient options available to police to confirm Mr. Riahi’s identity of which they failed to avail themselves. None of the officers recalled conducting a pat-down search of Mr. Riahi, whether to locate any weapons, wallet or identification. This is consistent with Mr. Riahi’s evidence that he was not searched until immediately before being placed in the scout car. Moreover, Mr. Riahi’s wallet was on a table in the living area, near the couch where Mr. Riahi was moved after being treated by the paramedics. The wallet would have been an obvious place to search for identification. In fact, the subsequent search of the wallet revealed that it contained Mr. Riahi’s credit card and a health card in his brother’s name.

[109] DC MacDonald admitted that he did not search Mr. Riahi for identification and did not ask any of the officers if they had. His explanation for not searching Mr. Riahi was that he was not close enough to him. This explanation, however, is illogical because DC MacDonald clearly interacted with Mr. Riahi and had an opportunity to search him if he thought it necessary or important to do so. If it was as important to locate identification as DC Macdonald maintained, his proximity to Mr. Riahi strikes me as an irrelevant consideration.

[110] Moreover, DC MacDonald did not only look in the backpack but opened a green reusable grocery bag that he found inside the backpack. I find it unlikely that identification would have been found within a reusable grocery bag, rather, it would have either been in a wallet or in the backpack itself.

[111] In my view, while it was not necessary to search the backpack for identification, DC MacDonald nonetheless believed that he was entitled to do so because the Defendant had given them a false name. I find that the purpose of the search was for identification, which is supported by the fact that this reason was initially given in the ITO and further explained in the second, revised ITO. The rationale of searching the bag for identification, while mistaken and unjustifiable, was not an after-the-fact fabrication. In the circumstances, I am not able to find that DC MacDonald acted in good faith but am also not able to find that he acted in bad faith.

[112] In the end, police did not locate any identification for Mr. Riahi. There was no indication that any of them believed the arrest to be invalid as a result. Indeed, DC Burke proceeded to apply for a CDSA search warrant on the belief that the person they had arrested was Mr. Riahi.

[113] While DC MacDonald also testified that the paramedics advised that a health card would be needed for Mr. Riahi to receive treatment at the hospital, the lack of a health card did not preclude Mr. Riahi from being treated. The evidence was that he was treated within two hours of arriving, which PC Haggart described as quick, demonstrating that a health card was not essential and that the lack of one did not cause a delay in treatment. While perhaps a legitimate concern, I question whether obtaining Mr. Riahi’s health card for medical treatment at the hospital would be considered a law enforcement objective that would meet the requirement for a valid search incident to arrest when the search extends beyond the area of physical control of an arrested person.

[114] As a result, the search of the backpack was not a lawful search incident to arrest and was in breach of Mr. Riahi’s rights under s. 8 of the Charter.

The search warrant

[115] The Defendant argues that evidence obtained in breach of the Charter, in other words, the cocaine and cash located in the backpack “should not provide the foundation for further police investigation.” The Crown concedes that aside from the drugs and currency found in the backpack, nothing else could have supported the issuance of the CDSA search warrant.

[116] Given the Crown’s concession, it is not necessary for me to assess whether, once reference to the suspected drugs and cash found in the backpack is excised from the ITO, the search warrant could have issued.

[117] It is worth noting that the issuing Justice denied the police’s initial request for a search warrant for the Unit, observing that the ITO was “sufficient only if relying on evidence obtained as a result of what may be a Charter breach.” The Justice expressed the view that it was not clear that the police had reasonable grounds to search the backpack for identification. It was only after the initial denial that the ITO was expanded to mention that officers searched the bag to confirm the Defendant’s identity after he gave a false name and to locate a health card to provide to hospital staff using the common law authority of search incident to arrest. The Justice then authorized the search warrant.

[118] I further note the search warrant was not in relation to the attempt murder and related charges against Mr. Riahi. At Appendix ‘A’ of the ITO, the evidence sought was all related to possession for the purposes of trafficking cocaine, such as cocaine, packaging, scales, proceeds, as well as electronic devices. Appendix ‘A’ did not mention firearms or ammunition. Similarly, at Appendix ‘B’ of the ITO, the search warrant related to the offence of possession for the purposes of trafficking, contrary to s. 5(2) of the CDSA.

[119] Because the search warrant could not have issued, the search of the Unit was warrantless and in breach of the Defendant’s rights under s. 8 of the Charter.

Did Police Breach the Defendant’s Rights to Counsel?

[120] In this case, Mr. Riahi was advised of his right to counsel at 7:04 a.m., within minutes of his arrest. He provided the name of his counsel of choice, Ayderus Alawi. The Defendant submits that the police breached his right to counsel by failing to facilitate a call to his counsel of choice until 10:14 a.m., after he had been treated at the hospital and booked at the police station.

[121] The Crown submits that because Mr. Riahi required medical treatment and was seen as a flight risk, he could not have been afforded the privacy necessary to make a call to counsel until he was brought to the police station.

The Applicable Principles

[122] Section 10(b) of the Charter guarantees that any person arrested or detained has the right to retain and instruct counsel without delay and to be informed of that right. In R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 25, Doherty J.A. stated: “Section 10(b) obliges the police to advise a detained person of the right to speak with counsel without delay and, if the detained person exercises that right, the police must immediately provide the detainee with a reasonable opportunity to speak with counsel.”

[123] The purpose of the s. 10(b) right is to “allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights…”: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 21, quoting R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43. In Taylor, the Supreme Court of Canada stated that the right is meant “to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination”: at para. 21, quoting R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 40.

[124] Where an accused person requests to speak to counsel, the arresting officer is “under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity”: Taylor, at para. 24. This includes providing access to a telephone: Taylor, at para. 28. The burden is on the Crown to show that a given delay was reasonable in the circumstances: Taylor, at para. 24.

[125] The Court of Appeal has held that that in specific circumstances, some delay is justifiable to ensure officer safety, public safety, the preservation of evidence, and the safety of others by securing the scene of an arrest or search: Rover, at para. 26. Such concerns must be case-specific as opposed to general: Rover, at para. 27. To fall within the exception to the requirement that an arrested person be allowed to speak to counsel without delay, the police must actually turn their mind to the specific circumstances of the case, and they must have reasonable grounds to justify the delay”: Rover, at para. 33. Even if such circumstances exist, the police must take reasonable steps to minimize the delay in granting access to counsel: Rover, at para. 27.

[126] In R. v. Griffith, 2021 ONCA 302, 71 C.R. (7th) 239, at para. 41, the Court of Appeal clarified the analytical approach to be taken in relation to s. 10(b), as reflected in Rover and R. v. Leonard, 2020 ONCA 802, 476 C.R.R. (2d) 166. A reasonable delay in the implementation of an accused person’s right to counsel based on justifiable case-specific concerns, as supported by the evidence, does not violate s. 10(b). In determining whether there has been a violation of s. 10(b), the court must consider the evidence of case-specific concerns to determine whether they justified delaying access to counsel.

[127] In R. v. Keshavarz, 2022 ONCA 312, 507 C.C.R. (2d) 222, at para. 67, the Court of Appeal found that police were under no obligation to implement rights to counsel until the appellant was in a safe and secure location where a private call with counsel could be facilitated.

Application to the Facts

At the hospital

[128] In this case, the issue is whether the Defendant’s right to counsel was breached because of a delay in implementation. The defence does not allege that the police attempted to question Mr. Riahi once he asserted his right to counsel.

[129] At the hearing, defence counsel conceded that it was not practicable for police to facilitate a call to counsel while they and the Defendant were in the Unit. The Unit was small with many officers present, and it would not have been possible to afford him the requisite privacy. The delay at issue is thus between 7:41 a.m. when Mr. Riahi was transported to the hospital to 10:14 a.m., when the call to counsel was made which is a total delay of 2 hours and 33 minutes.

[130] DC Burke testified that after he arrested Mr. Riahi and gave him rights to counsel, Mr. Riahi provided his lawyer’s name. DC Burke testified that he further explained to the Defendant that he would facilitate the call once police were able to afford him some privacy. DC Burke then left the Unit and returned to the police station to draft the ITO for the CDSA search warrant.

[131] Sometime later, two uniformed officers, PC Robert Haggart and PC Paul Gribbon, attended the scene to transport Mr. Riahi to the hospital. PC Haggart testified that they left for the hospital at 7:41 a.m. and arrived there at 7:45 a.m. They first waited with Mr. Riahi in the waiting area of the emergency room and, after being triaged, they were later moved to a treatment room. Mr. Riahi was treated by a doctor at 8:50 a.m. He received four stitches to his lip and a tetanus shot. At 9:15 a.m., Mr. Riahi was placed back into the scout car. They arrived at 33 Division at 9:24 a.m.

[132] Mr. Riahi testified that because DC Burke left the Unit before any call to counsel was made, he did not know when he would be put in contact with his lawyer, and asked other officers about when that would occur. I accept Mr. Riahi’s evidence on this. The footage from PC Haggart’s body worn camera (BWC) begins as he is exiting the elevator and Mr. Riahi is being brought to him. Although there is no audio-recording for the first 30 seconds, Mr. Riahi can be seen speaking at some length.

[133] While Mr. Riahi testified that he continued to ask the officers when he would be able to call counsel while they were waiting at the hospital, this was not put to PCs Haggart and Gribbon on cross-examination.

[134] PC Haggart testified that he did not put Mr. Riahi in touch with counsel because, based on the information received from DC MacDonald on scene, he believed Mr. Riahi posed an “extreme” flight risk. As a result, he did not want Mr. Riahi to be out of his sight or hearing and could not afford him the privacy to speak with counsel. He testified that at the hospital, they were either in the waiting room or a treatment room. In the treatment room, they were separated from others by only a curtain. PC Haggart further testified that while Mr. Riahi’s right to counsel was “top of mind” it was not “feasible” to facilitate a call to counsel because Mr. Riahi was processed and seen fairly quickly at the hospital. PC Haggart testified that he did not have a phone to provide to the Defendant and that he did not note any room where a private call could be made.

[135] PC Gribbon arrived on scene after Mr. Riahi had been put in PC Haggart’s scout car. He drove to the hospital separately and waited with PC Haggart and Mr. Riahi at the hospital. PC Gribbon testified that he did not facilitate the Defendant’s right to counsel because he understood that he was violent and posed an escape risk. In addition, there was no opportunity to afford Mr. Riahi the necessary privacy at the hospital.

[136] On cross-examination, PC Gribbon admitted that he did not ask DCs Burke or MacDonald whether Mr. Riahi had stated that he wanted to exercise his right to counsel, nor did he discuss facilitating rights to counsel from the vehicle with PC Haggart.

[137] The Supreme Court in Taylor, at para. 34, noted that a hospital is “not a Charter-free zone,” and further held that police had an obligation under s. 10(b) to see whether a private call with counsel could be facilitated while a person is in custody in a hospital setting. Police have an obligation to facilitate rights to counsel at the first reasonable opportunity and delay of implementational duties under s. 10(b) are reserved for urgent and dangerous situations: Taylor, at paras. 31, 34.

[138] In Taylor, the Supreme Court held that “where the individual has requested access to counsel and is in custody at the hospital, police have an obligation under s. 10(b) to take steps to ascertain whether private access to a phone is in fact available, given the circumstances”: at para. 34. The question is not whether the individual is in an emergency room but whether the Crown has demonstrated that the circumstances were such that a private conversation was not reasonably feasible.

[139] In this case, neither PC Haggart nor PC Gribbon inquired as to the availability of a private room or telephone for the Defendant to make a call to counsel from the hospital. However, I accept their evidence that they understood Mr. Riahi to be a flight risk and did not think they could leave him alone to make a call. The officers’ evidence that they understood that Mr. Riahi posed a flight risk was not simply an after-the-fact justification for having failed to facilitate his right to counsel. They in fact never left Mr. Riahi alone while at the hospital. Mr. Riahi testified that even while the doctor was stitching his lip, the officers continued to hold him by the arms. In addition, when the Defendant requested to use the washroom, PC Haggart accompanied him. Both of these actions demonstrate that PCs Haggart and Gribbon genuinely believed, based on the information that they had received, that Mr. Riahi posed a flight risk and that they could not let him out of their sight. Under the circumstances, even if a private room and telephone had been available, the officers would not have left him alone to call counsel.

[140] Further, I accept the officers’ evidence that they were not able to afford privacy to Mr. Riahi to make a call to counsel from the scout car because of the in-car camera system. In my view, the officers were not required to disable the in-car camera system, which is intended as a means of protecting arrestees, to allow for a call to counsel to take place. Practical considerations such as a lack of privacy can justify some delay: R. v. Wu, 2017 ONSC 1003, at para. 78.

[141] In addition, while the defence argued that the officers ought to have asked the Defendant whether he wanted to call counsel despite a lack of privacy, there does not appear to be any case law to support such an obligation on the part of police. This is not surprising given that the “right to retain and instruct counsel includes the right to do so in private”: R. v. Cairns (2004), 182 OAC 181, at para. 9.

[142] Therefore, the period from 7:41 a.m. when the Defendant was transported to the hospital to 9:24 a.m. when he arrived at the police station constitutes an explicable delay and is not in breach of Mr. Riahi’s s. 10(b) rights.

At the police station

[143] Mr. Riahi arrived at the police station at 9:24 a.m. At 9:50 a.m., he was paraded before the booking sergeant by DC Burke. PCs Haggart and Gribbons were also present. Mr. Riahi was frisk searched at 9:56 a.m. The booking process was complete at 10:02 a.m. DC Burke testified that after Mr. Riahi was paraded, he went to his computer to find a phone number for Mr. Alawi, the lawyer whose name Mr. Riahi had provided. At 10:14 a.m., DC Burke reached Mr. Alawi and put the Defendant in contact with him.

[144] There was no suggestion that a call to counsel would have been practicable during the booking process, when the officers were present and dealing with the Defendant. The period of delay would thus be from 9:24 a.m. to 9:50 a.m. and from 10:02 a.m. to 10:14 a.m., for a total of 38 minutes.

[145] Both PCs Haggart and Gribbon testified that they did not facilitate a call to counsel after arriving at the station because the Defendant was to be turned over to officers from the MCU for further processing and facilitating the call to counsel. While PCs Haggart and Gribbon were cross-examined about whether they tried to facilitate a call to counsel once they arrived at the station, they were not specifically challenged on the specifics of when or how this could have taken place. In any event, there was no evidence that a phone was available to make a call and, for the reasons given above, the officers were not required to turn off the in-car camera system to permit Mr. Riahi to contact counsel from the scout car.

[146] In respect of the delay between 10:02 a.m. when booking was complete and 10:14 a.m. when the call was placed, it would have taken a few minutes for DC Burke to return to his desk and to search for counsel’s phone number. In the circumstances, 12 minutes is not an unreasonable delay between the completion of booking and making the call. DC Burke was not cross-examined as to whether he did anything else in the meantime or whether he could have made the call any sooner once booking was complete.

[147] Based on the foregoing analysis, the Crown has explained the delay in implementing Mr. Riahi’s right to counsel. While he was at the hospital, it would not have been practicable to afford Mr. Riahi the necessary privacy to speak to counsel because the officers believed he posed a flight risk. After Mr. Riahi’s arrival at the police station, while there was some delay in booking him, that delay was not unreasonable.

[148] The defence argues that the breach of Mr. Riahi’s s. 10(b) rights is aggravated by the fact that it was the use of force by police that necessitated medical treatment, which caused or prolonged the delay in facilitating access to counsel. Moreover, the Defendant was unable to speak to his lawyer to better understand his situation in circumstances where he was injured and in police custody. I agree that Mr. Riahi’s right to counsel could have been facilitated sooner if he did not have to go to the hospital for medical treatment. However, given that I have found no breach of his s. 10(b) rights in the circumstances, in my view, this would be a more appropriate consideration in the s. 24(2) analysis of the impact on Mr. Riahi’s Charter-protected interests.

[149] Finally, I note that the delay in facilitating Mr. Riahi’s right to counsel was in respect of the attempt murder charges, which were eventually withdrawn. Mr. Riahi was charged with the offences before this court after the firearm and drugs were located in the Unit. The evidence is that at 9:25 p.m., after those items were located, the Defendant was advised of the further charges and asked if he wanted to speak to counsel. A call to his counsel was facilitated promptly thereafter. There is no allegation of a delay in implementing his right to counsel in respect of those charges.

Should the Evidence be Excluded?

The Applicable Legal Principles

[150] Section 24(2) of the Charter allows the court to exclude evidence obtained in a manner that violated an individual’s Charter rights, where admitting the evidence would bring the administration of justice into disrepute.

[151] The first issue to address under s. 24(2) is whether the evidence sought to be excluded was “obtained in a manner” that infringed on a right guaranteed by the Charter. In determining whether evidence was obtained in a manner that infringed on a Charter right, the connection between the evidence and infringement need not be causal in nature. The connection may be temporal, contextual or causal, or a combination of the three. Evidence may be tainted by the infringement if it is part of the same transaction or course of conduct: R. v. Mack, 2014 SCC 58, at para. 38. The “obtained in a manner” requirement is “just the gateway to the focus of s. 24(2) – whether the admission of the evidence would bring the administration of justice into disrepute” and should be approached generously: R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 56.

[152] The second issue is whether the admission of the evidence would bring the administration of justice into disrepute.

[153] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, the Supreme Court of Canada held that in determining whether the admission of evidence would bring the administration of justice into disrepute, the court must balance the following three factors:

(i) the seriousness of the Charter-infringing state conduct;

(ii) the impact of the breach on the Charter-protected interests of the accused; and

(iii) society’s interest in the adjudication of the case on its merits.

[154] In assessing the seriousness of the breach, the court is required to evaluate whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct: Grant, at para. 72. The overarching concern is to maintain public confidence in the rule of law and its processes.

Obtained in a manner

[155] In this case, because the search of the backpack was not a lawful search incident to arrest, the items seized from the backpack were obtained in a manner that infringed on the Defendant’s s. 8 Charter rights. There is a clear causal, temporal and contextual connection between the evidence and the breach.

[156] Similarly, because the search warrant could not have issued without the information about the items seized from the backpack, the evidence seized from the Unit was also obtained in a manner that infringed on his Charter rights.

[157] In addition, while there is no causal connection between the s. 7 and the discovery of the evidence, there is a close temporal and contextual connection.

Seriousness of the Charter-infringing state conduct

[158] The first Grant factor involves an examination of the conduct of the police. The more severe or deliberate the state or police conduct leading to the Charter violation, the greater the need for the courts to disassociate themselves from the conduct so as to preserve public confidence in the rule of law: Grant, at para. 72. When assessing the seriousness of the state conduct under s. 24(2), I must also take into account the cumulative effect of the breaches: R. v. Poirier, 2016 ONCA 582, 131 O.R. (3d) 433, at para. 91.

[159] For the reasons detailed below, in my view, the state misconduct weighs moderately toward exclusion of the evidence.

[160] To begin, the police went to arrest the Defendant at the Unit under a valid Feeney warrant for serious crimes involving the use of a firearm. The defence takes no issue with the validity of the Feeney warrant. In addition, my finding that police breached the Defendant’s rights under s. 7 of the Charter by using excessive force is based solely on PC Dodson’s stomp to Mr. Riahi’s head. In my view, while the stomp was not necessary, reasonable or proportionate, the use of force by police as a whole was not gratuitous. I must also take into consideration my finding that PC Dodson was not truthful in testifying that he stomped on Mr. Riahi’s back or shoulder. However, counterbalancing that is his admission that he caused the injury to the Defendant’s lip.

[161] In respect of the Use of Force Report completed by PC Dodson, I find that it was not completed in a misleading manner. PC Dodson ought to have provided more detail about the circumstances in which he used force against Mr. Riahi and the nature of the force used. However, he accurately reported that he first pointed a firearm and then employed empty hand techniques – hard. As for the team Use of Force Report, the approach taken to completing the report was lacking in diligence. Neither Sgt Reimer nor PC Leung, who completed the report, inquired as to whether the other ETF officers used force against Mr. Riahi. It is difficult to see how a report could be accurately completed without making such inquiries. In addition, PC Leung and a mistaken understanding of the difference between “empty hand techniques – soft” and “empty hand techniques – hard”. I find that the team Use of Force report was completed in a perfunctory manner that is inconsistent with the rationale for requiring police to complete such reports. Nonetheless, there is an absence of evidence to suggest that the team Use of Force report was completed in an intentionally misleading manner.

[162] I have also found a breach of Mr. Riahi’s rights under s. 8 of the Charter because the search of the backpack was not a lawful search incident to arrest. I note that the seriousness of the breach is mitigated somewhat by the fact that DC MacDonald stopped searching the backpack when he located the white substance and sought further direction from a superior. No further search of the backpack or Unit was conducted until a search warrant was obtained.

[163] While I found DC MacDonald’s testimony regarding the location of the backpack and the Defendant when he entered the Unit not to be credible, there is an insufficient basis upon which to find that he deliberately attempted to mislead the court.

[164] Similarly, DC MacDonald was mistaken about both his entitlement to search the backpack incident to arrest, whether for identification or a health card, and the necessity of doing so. Because I do not accept the rationale for searching the backpack, given that the officers knew the individual they had arrested was Mohamad Riahi, I cannot find that the mistake was made in good faith. Good faith cannot be claimed if the Charter breach arises from a police officer’s negligence, unreasonable error, ignorance as to the scope of their authority, or ignorance of Charter standards: R. v. Tim, 2022 SCC 12, 467 D.L.R. (4th) 389, at para. 85. Nonetheless, there is insufficient evidence upon which to find that the search of the backpack was in bad faith, in the sense that DC MacDonald knew that he was not entitled to search the backpack and that it was not necessary to do so, but that he searched the backpack anyway.

[165] Because the search warrant would not have issued without the reference to the items found in the backpack, the search of the Unit is also in breach of Mr. Riahi’s s. 8 rights. However, police had obtained a search warrant and understood the search to be lawful As the Court of Appeal held in R. v. Rocha, 2012 ONCA 707, at para. 28, “[a]pplying for and obtaining a search warrant is the antithesis of wilful disregard of Charter rights.” The obtaining of a warrant generally favours admission of the evidence, unless the defendant can show that the warrant was obtained through the use of false or deliberately misleading information or subversion of the warrant process: Rocha, at para. 28.

[166] In my view, DC MacDonald’s perceived need to search the backpack for identification was not an after-the-fact fabrication intended to mislead the issuing Justice. This is supported by the fact that the initial draft of the ITO mentioned that officers searched the backpack for identification. After the Justice raised the issue of a potential Charter breach, the rationale for seeking identification was further explained in the revised ITO. The search for identification was not raised for the first time in the revised ITO in response to the identification of a potential Charter breach.

[167] As a result, the s. 8 Charter breach resulting from the warrantless search of the Unit flowed from the initial s. 8 breach and, given that I have found no attempt to mislead the issuing Justice, was not the result of additional or independent state misconduct. Because police believed they were acting lawfully in searching the Unit, the warrantless search of the Unit thus does not materially enhance the seriousness of the Charter-infringing state misconduct.

[168] I have found no breach of the Defendant’s rights under s. 10(b) of the Charter resulting from the delay in facilitating a call to counsel. Moreover, when he was charged with the charges before this court, the firearm and drug-related offences, Mr. Riahi was again advised of his right to counsel and a call was facilitated soon after. The defence did not allege that police attempted to elicit information from Mr. Riahi at any time after he asserted his right to counsel.

[169] Based on the evidence, there is no basis upon which to find that the officers’ conduct reflects a systemic disregard of Charter rights. As a result, while I find that the first factor pulls toward the exclusion of the evidence, it does not pull strongly toward exclusion.

The impact of the breach on the Charter-protected interests of the accused

[170] In respect of the second Grant factor, while I found that the use of force by police was excessive only in relation to the final strike by PC Dodson, the impact of the s. 7 breach on Mr. Riahi’s Charter-protected rights is nonetheless significant. Mr. Riahi was stomped in the head, had to be taken to hospital to be treated, and received stitches while handcuffed and being held by at least one officer. Mr. Riahi testified that he was in shock and terrified. He has a permanent, visible scar and swelling on his lip. Based on the absence of medical evidence to corroborate Mr. Riahi’s account, however, I am unable to find that he was unconscious for any period of time.

[171] Although I found that the delay in facilitating his right to counsel was not a breach of his s. 10(b) rights, I find it a relevant consideration under the second Grant factor that implementation of his right to counsel was delayed because he had to receive medical treatment, which was necessitated by police action that I have found to be a breach of s. 7. But for the police’s use of force requiring treatment at the hospital, Mr. Riahi would have been taken directly to the police station and his right to counsel could have been facilitated earlier. While I found it impracticable to facilitate a call to counsel from the hospital, this does not negate that Mr. Riahi was in a vulnerable situation, injured, handcuffed, two uniformed officers to either side of him, and without access to advice. Mr. Riahi testified that because DC Burke left the scene after advising him of his rights to counsel, he did not know who would implement the call and when this would happen. While Mr. Riahi testified that he asked the uniformed officers, PCs Haggart and Gribbon about when he would be able to speak with his lawyer, the officers were not cross-examined on this issue. In any event, while at the hospital, Mr. Riahi was in a state of uncertainty as to when he would be able to speak with counsel on the attempt murder and related charges. In respect of the charges before this court, however, Mr. Riahi’s right to counsel was facilitated shortly after he was charged.

[172] In respect of the breach of Mr. Riahi’s s. 8 rights based on the search of the backpack and the Unit, I note that Mr. Riahi denies both residing at the Unit and ownership of the backpack. The Defendant is entitled to rely on the Crown’s theory that he resided at the Unit and that the backpack belonged to him, for the purposes of establishing standing to raise the s. 8 breach. However, his evidence, which counsel agreed was admissible on both the Charter voir dire, and trial, is relevant to his subjective expectation of privacy in both. In respect of the Unit, for reasons given further below, I find that he was staying there regularly in the weeks leading up to the execution of the Feeney warrant. As a result, he had a subjective expectation of privacy in the Unit and that expectation was objectively reasonable. In my view, the warrantless search of the Unit thus had a moderately serious impact on his s. 8 right.

[173] In respect of the backpack, because Mr. Riahi disclaimed ownership of it, I find that he had a reduced expectation of privacy, both subjective and objective, in a bag found in a Unit where he was staying. The impact of the breach on the Defendant’s Charter-protected interests is therefore minimal.

[174] Based on the foregoing, and taking into consideration the cumulative impact of the ss. 7 and 8 breaches, I find that the impact of the breaches on the Defendant’s Charter-protected interests weighs toward exclusion, but not strongly so.

Society’s interest in an adjudication on the merits

[175] The third Grant inquiry is concerned with the long-term reputation of the administration of justice, which is jeopardized by judicial indifference to unacceptable police conduct: R. v. Morelli, 2010 SCC 8, [2010] 1 SCR 253, at para. 102.

[176] Society’s interest in an adjudication on the merits almost always favours admission of the evidence: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at paras. 62-63.

[177] The admission of evidence obtained in violation of a Charter right cannot be supported solely on the ground that the offence is serious and that the evidence reliable and central to the Crown's case: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494. The negative effects of the loss of reliable, important evidence must be considered, but cannot be allowed to overwhelm the other considerations: R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1, at para. 53, rev’d on other grounds 2019 SCC 32, [2019] 2 S.C.R. 576.

[178] In Grant, at para. 81, the Supreme Court held that the “exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective thus bringing the administration of justice into disrepute.”

[179] The Crown takes the position that the exclusion of the firearms and drug evidence seized from the backpack and the Unit will “gut” the Crown’s case”.

[180] The courts have repeatedly recognized that the “toxic combination” of drugs and guns poses a persistent threat to public safety and the welfare of the community: R. v. Wong, 2012 ONCA 767, at para. 11. In this case, there is a strong public interest in having the charges for possession of prohibited firearm, over-capacity magazines, which pose a serious danger to the public, adjudicated on their merits: R. v. Reid, 2019 ONCA 32, at para. 67. In addition, the evidence includes a significant quantity of fentanyl, a substance that has been described as a “scourge” on our society. The public interest in the case being determined on its merits is very high.

[181] Given the importance of the evidence to the Crown’s case and its reliability, this factor weighs strongly in favour of the admission of the evidence.

Balancing

[182] In R. v. Lafrance, 2022 SCC 32, 472 D.L.R. (4th) 1, at para. 90, the Supreme Court held that “it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry.” (Emphasis in original.) In McGuffie, at para. 63, Doherty J.A. held that “if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence.” (Internal citations omitted.)

[183] The overriding consideration in any s. 24(2) analysis is whether admitting the evidence would bring the administration of justice into disrepute: R. v. Whittaker, 2024 ONCA 182, at para. 60.

[184] In this case, the first factor ways only moderately in favour of exclusion of the evidence. The second factor weighs more strongly in favour of exclusion but not overwhelmingly so. The third factor weighs strongly in favour of inclusion.

[185] Based on my balancing of the Grant factors, my view is that this is not a case in which the court should dissociate itself from evidence obtained in this manner. In the circumstances of this case, a reasonable person informed of the relevant circumstances and familiar with Charter values would conclude that the exclusion of the seized evidence would bring the long-term reputation of the administration of justice into disrepute.

[186] Based on my consideration of the Grant factors, I decline to exclude the evidence seized from the backpack and Unit.

Should a Stay be Granted?

[187] A stay of proceedings stay of proceedings is the most drastic remedy a court can order in that it permanently halts a prosecution: R. v. Sandhu, 2020 ONCA 479. A stay is only appropriate “in the clearest of cases” where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued: R. v. O’Connor, [1995] 4 S.C.R. 411, at p. 468. Cases warranting a stay of proceedings will be “exceptional” and “very rare.”: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 44.

[188] The test to determine whether a stay of proceedings is warranted consists of three requirements:

(i) prejudice to the accused’s right to a fair trial or to the integrity of the justice system hat will be manifested, perpetuated or aggravated through the conduct of the trial or its outcome;

(ii) no alternative remedy capable of redressing prejudice; and

(iii) where uncertainty remains after the first two steps have been taken, whether the balance of interests in favour of a stay, such as denouncing misconduct and preserving the integrity of the justice system, outweighs the interest of society and having a final determination on the merits.

Babos, at para. 32

[189] In the circumstances of this case, I find that there is no prejudice to the Defendant’s right to a fair trial or the integrity of the justice system that would result from the conduct of the trial or by its outcome. The police conduct in this case does not rise to the level of seriousness requiring the Court to dissociate itself, particularly since there is a high public interest in adjudicating this case on its merits. Moreover, there are adequate alternative remedies capable of redressing the prejudice to the Defendant, including a potential reduction in sentence.

[190] The Charter breaches at issue here are not such that this is one of the rare or clearest of cases in which a stay of proceedings is warranted.

Conclusion on the Charter Application

[191] For the foregoing reasons, the application is dismissed.

Has the Crown Proven the Offences Beyond a Reasonable Doubt?

General Principles

[192] Before assessing the evidence of the offences, it is helpful to set out the applicable legal principles. Mr. Riahi is presumed innocent. The Crown bears the burden of proving the elements of the offences charged beyond a reasonable doubt. It is not sufficient to prove that the defendant is probably guilty. However, the Crown is not required to prove its case to the point of absolute certainty, which would be impossibly high.

[193] Where, as here, the Crown’s case rests on circumstantial evidence, the question is whether the trier of fact could reasonably be satisfied that the accused’s guilt is the only reasonable conclusion available on the totality of the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55. In Villaroman, at para. 35, the Supreme Court held that “[i]n assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts” because such a requirement wrongly puts an obligation on an accused to prove facts. If reasonable inferences other than guilt are available, the Crown’s evidence does not meet the standard of proof beyond reasonable doubt.

[194] A gap in the evidence may result in inferences other than guilt. However, “those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense”: Villaroman, at para. 36.

[195] Other plausible theories or other reasonable possibilities must be based, not on speculation, but on logic and experience applied to the evidence or the absence of evidence. The line between a plausible theory and speculation is not always easy to draw: “The basic question is whether the circumstantial evidence viewed logically and in light of human experience is reasonably capable of supporting an inference other than that the accused is guilty”: Villaroman, at para. 38.

[196] Similarly, the Court of Appeal held, in R. v. Ali, 2021 ONCA 362, at para. 97, that “[a]n inference of guilt drawn from circumstantial evidence must be rooted in the evidence and must be the only reasonable inference available on the totality of the evidence.” In determining whether the Crown has met that burden in a circumstantial evidence case, the jury may apply its logic and common sense to the totality of the evidentiary picture, including gaps in that picture, and consider whether other reasonable possibilities not only exist, but preclude a finding that an inference of guilt is the only reasonable inference available: Ali, at para. 98.

[197] In weighing the evidence, I must assess the credibility and reliability of the witnesses’ evidence. This involves considering the internal consistency of each witness’s testimony and its consistency in the context of the evidence as a whole.

[198] In this case, because Mr. Riahi testified in his defence, this court must follow the approach set out by the Supreme Court of Canada in R. v. W. (D.), [1991] 1 S.C.R. 742, in assessing the evidence. The following analysis applies:

(i) If the court believes the defendant’s evidence, he must be found not guilty;

(ii) If the court does not believe the defendant’s evidence, but it leaves the court with a reasonable doubt, he must be found not guilty; and

(iii) Even if the defendant’s evidence does not leave the court with a reasonable doubt, the court may only find the defendant guilty if the court is persuaded that the Crown proves the charges beyond a reasonable doubt.

The Drug Offences

The Applicable Principles

[199] The Defendant is charged with possession for the purposes of trafficking contrary to s. 5(2) of the CDSA of the following substances: cocaine, crack cocaine, fentanyl, oxycodone, aderall, clonazepam and temazepam (the “controlled substances”). Mr. Riahi is also charged with possession of proceeds of crime under $5,000 contrary to s. 354 of the Criminal Code.

[200] The Crown must prove each of the following essential elements of the offence beyond a reasonable doubt:

(a) The substance was a controlled substance;

(b) The Defendant was in possession of the substance;

(d) The Defendant possessed the substance for the purpose of trafficking.

[201] Under s. 4(3) of the Criminal Code, possession includes personal possession, constructive possession and joint possession. Where personal possession is alleged, an accused must be aware: (i) that they have physical custody of the thing alleged; and (ii) what the thing is. Both elements must co-exist with an act of control: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 16. Control means that the person has some power or authority over the substance, whether or not they used that power or authority: R. v. Pham, 2006 SCC 26, [2006] 1 S.C.R. 940, affirming (2005), 203 C.C.C. (3d) 326 (ONCA).

[202] Constructive possession is established when an accused does not have physical custody of the thing but has it in any place for their own or another's use or benefit: Criminal Code, s. 4(3)(a)(ii). Constructive possession is complete where an accused:

(i) has knowledge of the character of the object;

(ii) knowingly puts or keeps the object in a particular place, irrespective of whether the place belongs to or is occupied by the accused; and

(iii) intends to have the object in the place for the use or benefit of the accused or of another person.

Morelli, at para. 17.

[203] Knowledge includes actual knowledge and wilful blindness. Wilful blindness involves a degree of awareness of the likely existence of the prohibited circumstances together with a blameworthy conscious refusal of self-enlightenment: R. v. Lights, 2020 ONCA 128, at para. 52.

Evidence

The Agreed Facts

[204] In the ASF, the defence conceded the following facts:

(i) Detective Matthew Serrano is an expert in the area of possession, sale and distribution of fentanyl, cocaine and crack cocaine, the associated indicia, equipment and paraphernalia, pricing and packaging.

(ii) The amount and nature of the controlled substances are conceded as referenced by Detective Matthew Serrano in the drug expert report and the associated Health Canada Certificates.

(iii) It is admitted that the controlled substances seized in this matter as referenced in the drug expert report (fentanyl, powder cocaine and crack cocaine) are consistent with possession for the purpose of trafficking.

(iv) Mohamad Riahi was in possession of the phone associated to phone number 437-256-3732 at the time of his arrest on June 11, 2022.

(v) Access to 29 Singer Court was provided on 185 occasions between April 29 and June 10, 2022 to line 437-256-3732 through the TSCC enterphone system associated to the condo building located at 29 Singer Court. This is captured in the Transmission Data Recorder data, which is admitted on consent.

(vi) Line 437-256-3732 was subject to a tracking warrant. Location-based services (LBS) data is automatically sent by the service provider of a phone which is the subject of a tracking warrant approximately every 15 minutes. It is GPS-based and contains the longitude and latitude of the associated device as well as an uncertainty radius. LBS data tracked the phone number in the vicinity of 29 Singer Court on multiple occasions (including April 25-29, May 4, 6, 19, 20, 24, 30, 31, June 4, 5, 6, 7, 10 and 11) in the months preceding the execution of the Feeney warrant on June 11, 2022.

[205] In addition, Mr. Riahi’s income tax records were admitted on consent. He reported no income for the years 2019 to 2022.

The Crown’s Evidence

[206] After the search warrant was granted on June 11, 2022, investigators of the MCU began executing the search warrant at 5:50 p.m. Photographs taken by the scene of crime (SOCO) officer, Jason Domingo, were admitted into evidence on consent. PC Domingo testified that he took the photographs on a police-issued cell phone while the search warrant was being executed. However, it was his first time taking SOCO photographs and he had not been trained to do so. PC Domingo took photographs as he was advised of items that were located.

[207] Based on the photographs themselves, it appears that police did not take photographs of the state of the Unit when they entered and before they commenced the search. The photographs show various reusable bags and items placed on the kitchen counter. There was no indication as to when the photographs were taken. The photographs show various controlled substances located by police, as well as a cash counter, digital scales, pill bottles with labels removed, food colouring, and other items.

[208] Further, the Crown adduced no evidence as to where in the Unit various items were located. The Property Exhibit List itemizes everything seized but not where in the Unit the items were found, including whether or not they were found in the backpack. One photograph appears to show additional Ziploc or small plastic bags containing controlled substances originating from the green reusable bag found in the backpack. With the exception of the Ziploc bag that was found to contain cocaine and the bundle of cash, however, the evidence does not distinguish the controlled substances that were located in the backpack from those that were located in the Unit.

[209] Based on their size, it can be inferred that certain items, such as the blender found to have cocaine residue on it, were located in the Unit. A photograph appears to show that the blender was located in a cupboard under the sink. However, in respect of other items, such as the fentanyl, pill bottles and pills, there is simply no evidence as to where they were located.

The Defendant’s Evidence

[210] The Defendant testified that he was not residing at the Unit. Mr. Riahi admitted that he was not living at his mother’s residence, which was his usual address, because he was evading police and it was dangerous for him to return there. Mr. Riahi testified that he stayed at various places for brief periods of time.

[211] Mr. Riahi testified that the Unit was leased by his friend, Theodore Muftiev, and that Mr. Muftiev’s father and at least two other individuals also stayed there for brief periods of time. Mr. Riahi described the Unit as a place where he could go to chill and smoke. He denied sleeping in the bed in the bedroom of the Unit and testified that he never cooked food in the kitchen. A photograph of the kitchen shows dishes and containers in the sink and utensils and other items in the dish rack.

[212] The Defendant testified that the gold iPhone with the telephone number 437-256-3732 did not belong to him. The gold iPhone was the phone used to gain access to the Unit. Mr. Riahi testified that whoever was using the Unit at the time would hold the gold iPhone to gain access to the Unit. It would then be passed to the next person using the Unit.

[213] Mr. Riahi testified that it came as a shock to him that the police found drugs in the Unit. He testified that he believed the Unit to be drug-free, with the exception of marijuana, and that he had never seen anyone else with drugs in the Unit. Mr. Riahi denied selling drugs.

[214] Mr. Riahi testified that he had the firearm for “protection” in case anyone tried to hurt him, but that he would not always carry it with him. He could not recall when he purchased the gun. In respect of the over-capacity magazines, he testified that he had been hoping to sell them for a $50 profit. He testified that he put the firearm in the clothes hamper but that the clothes did not belong to him.

[215] On cross-examination, the Defendant admitted that during a phone all with Ahmad, he told him that he had “fat change” for him and that this meant he had a lot of money for him. He could not specify how much money he planned to give his brother. When asked about the source of the money, despite reporting no income for tax purposes, Mr. Riahi testified that he got “a lot” of money in other ways, including CERB. He testified that he did not give the money to his brother. Mr. Riahi had testified that he loved his brother, that they were close and that the photograph in his wallet was of his brother. However, on cross-examination, Mr. Riahi could not recall whether he saw Ahmad during the month after he was released from custody and before the Defendant’s arrest.

Findings

[216] The Crown submits that if Mr. Riahi was not in personal possession of the controlled substances found in the Unit, he was in constructive possession.

[217] The defence concedes that the seized substances were controlled substances, as identified in the Certificates of Analyst. In respect of the fentanyl, powder cocaine and crack cocaine, the defence concedes that the nature and quantity are consistent with possession for the purposes of trafficking. For those substances, the remaining issues are whether the Defendant was in possession of them and whether he knew the nature of the substances.

[218] I note that I must remain cognizant that the evidence is to be assessed as a whole when measured against the Crown’s burden of proof.

[219] Earlier in these reasons, I detailed some of my concerns about the credibility of Mr. Riahi’s testimony and will not repeat those findings here. In addition to those findings, I reject Mr. Riahi’s testimony that he was not staying at the Unit in the period preceding June 11, 2022 and that the gold iPhone did not belong to him.

[220] The Defendant’s denial that the gold iPhone belonged to him is not credible when weighed against the evidence of his use of the phone. A photograph of the gold iPhone shows a finger of an officer being used to scroll through the screen. A photograph of an individual resembling Mr. Riahi appears with a date of June 7, 2019 on it. Mr. Riahi denied that it was him in the photograph and testified that it was his brother, Ahmad, in the photograph. Mr. Riahi offered no explanation as to why a phone that was being passed among various people for the purpose of accessing the Unit would have a photograph of his brother on it.

[221] On cross-examination, it was put to Mr. Riahi that on May 10, 2022, he called Ahmad, who was in custody at the time, from the gold iPhone. Mr. Riahi denied calling Ahmad and testified that it was his brother who called him on the gold iPhone. In other words, the phone number that Ahmad had for him was the phone number for the gold iPhone. It is unlikely that Ahmad would have contacted that number if the gold iPhone was being used by many others for the purpose accessing the Unit. It simply belies belief that while in custody, Ahmad would know that Mr. Riahi was carrying the gold iPhone at that particular point in time.

[222] In addition, Mr. Riahi’s evidence regarding which phone he put on the table upon arriving at the Unit changed during the course of his testimony. In chief, Mr. Riahi first testified that after arriving at the Unit that morning, he put the cell phone that he was “walking with,” meaning the gold iPhone, and his wallet on the coffee table, before laying down on the couch. On cross-examination regarding the phones found in the Unit, he testified that only the flip phone belonged to him. He first stated that it was the flip phone that he put on the table. He then changed his testimony to say he put two phones on the coffee table before laying on the couch, despite only having identified a single phone earlier in his evidence.

[223] After the phone was seized, at 7:29 p.m. on June 11, 2022, DC Rocha called the number 437-256-3732. The gold iPhone rang and was picked up by DC Burke, thus “proving” the line.

[224] Despite Mr. Riahi’s attempts to distance himself from the gold iPhone, in my view, it belonged to him. From April 29, 2022 to June 10, 2022, the gold iPhone had been used 185 times to access the Unit. In addition, the LBS data showed the gold iPhone to be in the vicinity of 29 Singer Court on multiple occasions during the same time period. As a result, I find that during that period, Mr. Riahi was attending and staying regularly at the Unit. In the week leading up to the execution of the Feeney warrant on June 11, 2022, Mr. Riahi was staying at the Unit on an almost daily basis.

[225] While my finding that Mr. Riahi was staying at the Unit is relevant to the issues of possession and knowledge, possession cannot be presumed from residency, tenancy, or occupancy of a place: R. v. Lights, 2020 ONCA 128, at para. 50; R. v. Choudhury, 2021 ONCA 560, at para. 19.

[226] Before turning to the issues of possession and knowledge, I note that my findings regarding Mr. Riahi’s credibility are based on other inconsistent evidence given by him during the course of his testimony, including the following:

• He initially admitted that he was hiding from police, but then disputed that he was staying at the Unit because he was hiding from police;

• His testimony about how he was supporting himself was vague, unconvincing and evasive. Despite reporting no income for the three years preceding the arrest, he testified without specifics that he was living off savings and also that his girlfriend and other people helped him out;

• The Defendant denied that he was panicked when he heard the police come. His testimony that he went to the door out of “curiosity” was not credible;

• He testified that the duffel bag containing the ammunition and that was found in the closet belonged to him. He then testified that he did not know what else was in the closet because he does not go into the closet because it is not his stuff; and

• The Defendant testified that he saw the large cash counter box but he had never used it and did not think anything of it.

[227] I recognize, however, that Mr. Riahi was forthright in admitting that the firearm, overcapacity magazines and ammunition belonged to him.

[228] As noted earlier, given my concerns about the credibility of his evidence, I reject Mr. Riahi’s testimony unless corroborated by other evidence at trial. Given the large amount of drugs found in the Unit, I do not accept Mr. Riahi’s evidence that he believed the Unit to be “drug-free.”

[229] The Unit contained many indicia of drug trafficking, such as the large quantities of controlled substances, the variety of pills, the blender with cocaine residue, and items used in drug trafficking such as the digital scales and cash counter. There were also large amounts of marijuana that Mr. Riahi denied belonged to him. In addition, a bundle of cash totalling over $4,000 was found in the backpack, along with the Ziploc bag of cocaine. This would support an inference that the cash was the “fat change” that he told his brother he would give him. Given Mr. Riahi’s lack of employment and sources of income, it could also be inferred that he earned the money by trafficking drugs. His explanation of having savings from sources such as CERB was not credible, nor was his description about how his girlfriend kept his money and how he would go to her from time to time to obtain it. Moreover, Mr. Riahi’s admission that the firearm and ammunition belonged to him would further support that he was engaged in the drug trade.

[230] In my view, however, the Crown has failed to demonstrate beyond a reasonable doubt that the Defendant had personal or constructive possession of the controlled substances. My finding is based on the following considerations.

[231] First, the fact that Mr. Riahi was staying at the Unit in the period leading to the execution of the Feeney warrant is insufficient to demonstrate the requisite physical custody and control of the seized substances. There was evidence that corroborates Mr. Riahi’s testimony that other individuals also had access to the Unit. The lease was in the name of Mr. Muftiev. The SOCO photographs show multiple toothbrushes in the bathroom of the Unit. A photograph of the bedroom shows the bed made, which is consistent with Mr. Riahi’s testimony that he lay on the couch in the living room, which is where he slept, when he arrived at the Unit early that morning. There were numerous shoes and shoeboxes in the closet that police noted were size 8.5 or 9. The Defendant testified that he wears a size 7.5 or 8 shoe. While I do not necessarily believe his testimony, there was no evidence as to size of the shoes found at the door of the Unit, which Mr. Riahi testified belonged to him. There was also no evidence as to the size of any of the clothing located in the Unit or whether Mr. Riahi had ever been seen wearing any of the particular items of clothing.

[232] While the LBS data shows the phone number associated with the gold iPhone in the vicinity of 29 Singer Court on multiple occasions between April 29, 2022 and June 11, 2022, the LBS data does not show the phone number to be there daily, as might be expected if Mr. Riahi was residing there for the entire period. For example, in May 2022, the LBS data shows the phone number in the vicinity of 29 Singer Court on 7 out of 31 days in the month. I note, however, that in the week preceding the execution of the Feeney warrant, the phone number is located there daily, with the exception of June 9, 2022.

[233] Second, I am troubled by the lack of evidence as to where in the Unit the various controlled substances were located. As a result, it cannot be determined on the evidence whether any of the drugs were concealed or in plain view and whether Mr. Riahi had knowledge of them. If the Unit was not solely occupied by Mr. Riahi, it is possible that they were left there by the other individuals who had access to the Unit. Certain items, such as the pill bottles containing aderall or oxycodone pills, were small enough that they could have been located in places that the Defendant was not aware of. There is a photograph of pill bottles in a measuring cup. However, there is no evidence before me as to whether they were originally found in the measuring cup and where the measuring cup was located.

[234] Third, as noted earlier, other than the Ziploc bag of powder cocaine, there is a lack of evidence as to which controlled substances were located in the backpack, as opposed to those located in the Unit. It appears from the photographs that a number of substances were located in the green reusable bag in the backpack because there are other Ziploc bags and items, along with a digital scale, but that is not clear from the evidence. The Crown has not demonstrated beyond a reasonable doubt that Mr. Riahi had custody and control of the backpack. For the reasons given earlier, there is an absence of evidence as to where the backpack was located. Mr. Riahi denied that the backpack was his. No evidence was given that Mr. Riahi had previously been seen carrying the backpack. No identification was found in the backpack. Given the possibility that others also used the Unit, the backpack could belong to one of the other individuals with access to the Unit.

[235] Reasonable alternative inferences to guilt need not be based on proven facts; they need only be plausible based on logic and experience: Villaroman, at paras. 35-37. Based on logic and experience, it is plausible that individuals other than Mr. Riahi accessed the Unit. It is also thus plausible that one of them left at least some of the controlled substances in the Unit. It is also plausible that one of them left the backpack in the Unit. Although there was a significant quantity of cocaine and cash in the backpack, both were contained in a reusable bag in the backpack and would not have been readily visible to someone who looked in the backpack. In the circumstances, it is not purely speculative to infer that Mr. Riahi had no knowledge of the drugs in the backpack. In my view, given the gaps in the evidence, there are alternative inferences that can be made from the totality of the evidence that are not based on speculation or conjecture.

[236] Based on the foregoing, I am not satisfied beyond a reasonable doubt that Mr. Riahi had knowledge of the controlled substances in the Unit and the backpack. In the absence of evidence as to the location of any of the controlled substances in the Unit, I cannot infer that Mr. Riahi knew they were there or even that he was wilfully blind to that fact.

[237] In my view, the circumstantial evidence viewed logically and in light of human experience is reasonably capable of supporting an inference other than that the accused is guilty.

[238] Based on the foregoing analysis, in my view, the Crown has failed to demonstrate beyond a reasonable doubt that the Defendant had knowledge and control of the controlled substances.

[239] Applying the W.(D.) analysis, I do not believe the Defendant’s testimony. However, while I do not believe the Defendant’s evidence, I am left with a reasonable doubt. He must therefore be found not guilty of the charges of possession for the purposes of trafficking. In any event, for the reasons given above, I am not persuaded that the Crown has proven the charges beyond a reasonable doubt.

[240] For similar reasons, including that the backpack could have belonged to someone else, it follows that I am also left with a reasonable doubt on the offence of possession of property obtained by crime.

[241] The elements of the offence of possession of property obtained by crime are: (i) identity of the accused; (ii) jurisdiction; (iii) that the accused possess the property or proceeds; (iv) that the property or proceeds were obtained or derived, either directly or indirectly, as a result of the commission of an indictable offence; and (v) that the accused knew that the property or proceeds were obtained or derived, directly or indirectly, as a result of the commission of an indictable offence.

[242] The Crown has failed to establish that Mr. Riahi had knowledge and control of the bundle of cash, which was found in the green reusable bag in the backpack.

[243] Based on the foregoing reasons, the Defendant is found not guilty of the charges for possession for the purposes of trafficking and the charge of possession of property obtained by crime.

The Firearm Offences

[244] Mr. Riahi is charged with possessing a loaded prohibited or restricted firearm, a Glock 27 Gen 5, knowing that he did not have an authorization or licence to possess it, contrary to s. 95(1) of the Criminal Code; two counts of possessing a prohibited device, an overcapacity magazine, knowing that he was not the holder of a licence to possess it, contrary to s. 92(2); and four counts of possessing a firearm, prohibited device, or ammunition while prohibited from doing so by an order, contrary to s. 117.01(1).

[245] The following facts were conceded by the defence in an Agreed Statement of Facts (ASF):

(i) The firearm located in the Unit is a fully functioning prohibited firearm: Glock 27 Gen 5 .40 S&W semi-automatic handgun with a barrel length of 87 mm, as referenced in the Certificate of Analysis.

(ii) The firearm was loaded with 10 rounds of ammunition (one in the chamber and 9 in the magazine).

(iii) A further 210 rounds of ammunition were located in a duffel bag in the bedroom closet of the Unit. Some of the ammunition located in the duffel bag was compatible with the firearm as indicated in the Certificate of Analyst.

(iv) Police seized two overcapacity magazines from the same duffel bag as referenced in the Certificate of Analyst.

(v) Mohamad Riahi has never been a holder of a licence or permit which permits him to possess or purchase a restricted or prohibited firearm. No registration certificate was issued for the handgun.

[246] The defence conceded the expert evidence of Matthew Power, which identified Mr. Riahi’s fingerprint on the packaging of an oversize magazine located in the duffel bag in the closet.

[247] At trial, Mr. Riahi admitted that the firearm found in the laundry hamper belonged to him. He testified, however, that the clothing in the laundry basket did not belong to him. He also admitted that the ammunition found in the duffel bag in the bedroom closet also belonged to him, although he testified that he had been planning to sell it.

[248] Based on the admitted facts and the evidence, I am satisfied beyond a reasonable doubt that Mr. Riahi knowingly had the firearm, overcapacity magazines, and ammunition in a place for the use and benefit of himself. Accordingly, Mr. Riahi is found guilty of the charges for possession of a firearm/prohibited device (counts 1, 2, and 3 on the first indictment, 24-20000554).

[249] At trial, the Defendant agreed that if he was found guilty of the offences of possession of a prohibited firearm/device, he would plead guilty to counts 1 to 4 on the second indictment (24-20000555) for possession of a prohibited firearm/device while prohibited by an order of the Ontario Court of Justice dated May 11, 2018.

Conclusion on the Trial

[250] Accordingly, the Defendant is found not guilty of Counts 4, 5, 6, 7, 8, 9, 10 and 11 on the indictment (24-20000554).

[251] The Defendant is found guilty of counts 1, 2, and 3 on the first indictment (24-20000554) and counts 1, 2, 3 and 4 on the second indictment (24-20000555).

“Nishikawa J.”

Released: October 23, 2024

COURT FILE NO.: CR-24-20000554 24-20000555

DATE: 20241023

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

His Majesty the King Respondent

– and –

Mohamad Riahi Defendant

REASONS FOR JUDGMENT

Nishikawa J.

Released: October 23, 2024

[^1]: The statement of the doctor is hearsay and is not admitted for the truth of its contents. No medical reports or documentation was adduced into evidence. [^2]: Information received by the officers that Mr. Riahi fled during a traffic stop is not entered for the truth of its contents but for the fact that the statement was made and relied on by the officers. In any event, Mr. Riahi confirmed in his evidence that he drove away after being stopped by police. [^3]: Any statement made by paramedics is hearsay and not admitted for the truth of its contents. [^4]: DC MacDonald was in plain clothes on that day. DC MacDonald was not cross-examined on whether he asked the Defendant if the bag was his, which was a potentially incriminating question. None of the uniformed officers were cross-examined about bringing the bag to Mr. Riahi or asking if it was his.

Overview

Issues

Factual Background

Analysis

Did the Police use Excessive Force in Arresting the Defendant?

The Applicable Principles

Application to the Facts

The Defendant’s Evidence

The Officers’ Evidence

Use of Force Reports

Findings

Was the Search Lawful?

The Applicable Principles

Application to the Facts

The Evidence

Findings

The search warrant

Did Police Breach the Defendant’s Rights to Counsel?

The Applicable Principles

Application to the Facts

At the hospital

At the police station

Should the Evidence be Excluded?

The Applicable Legal Principles

Obtained in a manner

Seriousness of the Charter-infringing state conduct

The impact of the breach on the Charter-protected interests of the accused

Society’s interest in an adjudication on the merits

Balancing

Should a Stay be Granted?

Conclusion on the Charter Application

Has the Crown Proven the Offences Beyond a Reasonable Doubt?

General Principles

The Drug Offences

The Applicable Principles

Evidence

The Agreed Facts

The Crown’s Evidence

The Defendant’s Evidence

Findings

The Firearm Offences

Conclusion on the Trial

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 11

Legal Tests 6

Legislation 2