Ontario Superior Court of Justice

Court File No.: CR-23-00000065-0000
Date: 2025-02-18

Between:

His Majesty the King
Respondent
Counsel: Sabrina Montefiore

-and-

Brandon Abrams
Applicant
Counsel: Alison McArthur

Heard: January 6, 2025

Reasons for Decision

(Charter Application)

Latimer J.

I. Facts

1This motion concerns itself with two issues: (1) when a Charter detention begins, and (2) the police obligation to hold off investigation until section 10(b) of the Charter has been fully implemented.

2A hotel clerk called in a suspected fraud in progress early on a January morning in 2023. A uniform officer was dispatched to the call and attended the hotel. Brandon Abrams was waiting in the lobby and ultimately was arrested. He is being tried in the Superior Court of Justice on charges of fraud, possession of identity documents and possession of fentanyl for the purpose of trafficking. His Charter application has been heard as a pre-trial motion. I have heard evidence from a single witness, accompanied by a document commonly referred to as a “prisoner log”. What follows are my findings of fact and decision on the application.

3Mr. Abrams was investigated in the lobby of a Comfort Inn in Niagara Falls. A clerk called the police because he believed Mr. Abrams was trying to book a room with fraudulent credit card information. The clerk was aware that this had been a recent problem across the city.

4Constable Gibbons was a peace officer on general patrol in the area. She arrived at the hotel at 7:09 am. Mr. Abrams and the clerk were both in the lobby. The officer spoke with the clerk, obtained information, and then asked Mr. Abrams for identification. He did not provide any documentation but advised his name was Brandon Abrams with a certain DOB. The officer went back to her cruiser to run that information through her onboard computer.

5Constable Gibbons was asked during cross-examination why she did not formally advise Mr. Abrams that he was being detained for investigative purposes. She responded that he was not detained, he was “cooperative and calm” and there was no need to physically detain him at this early stage of her investigation. While she would have stopped him had he tried to leave, such a scenario never arose because of his cooperative nature. When she went back to her cruiser to search for information connected to the verbal identification provided, she could see Mr. Abrams sitting patiently inside the hotel lobby. I accept that he was not in handcuffs at this time.

6The police computer responded that Mr. Abrams had outstanding warrants for his arrest. Armed with that information, Constable Gibbons returned to the lobby and arrested him on the strength of those warrants at 7:23 am. Five minutes later, she provided him his rights to counsel and caution. He understood what he had been told and asked to speak to his lawyer, Alison McArthur.

7A search incident to arrest followed. Bags on Mr. Abrams’ person and in his nearby possession were seized and/or searched. Drugs were found in his jacket pocket, an airsoft pistol in his fanny pack, and larger bags in his possession accompanied him back to the police station where a detailed search would occur, revealing additional drugs, drug dealing paraphernalia and fraudulent identity documents. [1]

8Mr. Abrams was brought into the police station at 7:49 am and Ms. McArthur was called at 8:08 am. At 8:48 am, the police began to unpack and search Mr. Abrams’ bags. Ms. McArthur connected with Mr. Abrams at 9:05 am and a consultation took place. At this point, however, the only charges that had been communicated to Mr. Abrams related to his outstanding arrest warrants. [2]

9Constable Gibbons testified that the search of the bags took, “if [she] was guessing, a couple hours”. At 11:50 am, she discussed the available charges with an officer from the Fraud Bureau, and subsequently contacted the owners of the identification and completed paperwork.

10Constable Gibbons appreciated that the fruits of the bag searches meant that Mr. Abrams was going to face additional charges relating to possession of drugs and identity documents, and that he would have to be advised of those charges and given his rights to counsel again. She also appreciated that these new charges were objectively more serious than what he had originally been arrested for. However, her testimony demonstrates that this process occurred at a somewhat leisurely pace.

11To review, Mr. Abrams was brought into the police station at 8:08 am and permitted to consult with counsel at 9:05 am, according to the prisoner log. The search of his bags occurred at approximately the same time. However long that search took, – and the officer’s recollection of timing and details left much to be desired – by 11:50 am I accept it was complete because Constable Gibbons recalls speaking with the fraud officer at that time. Clearly, that consultation occurred because the police were preparing to have additional fraud-related charges laid.

12What does not take place following these seizures, however, are any active steps on the officer’s part to inform Mr. Abrams of these new charges and determine whether he wishes to consult with counsel anew. Both counsel in this proceeding agree he was entitled to a renewed reading of his rights coupled with a clear understanding of his current jeopardy. What they don’t agree on, however, is whether that entitlement was fulfilled on the facts of this case.

II. Legal Analysis

13Counsel for Mr. Abrams raises three issues for determination:

1. Was he detained prior to his arrest in the hotel lobby?
2. Were his section 10 Charter rights violated following his arrest?
3. If his rights were violated, should any evidence be excluded from his trial?

(1) Was the defendant detained?

14Mr. Abrams submits that he was detained immediately by Constable Gibbons, and therefore should have been informed of his right to counsel before being subject to questioning. This issue turns on whether an investigative detention took place when the officer approached the defendant in the hotel lobby and obtained his name. Not every interaction with a police officer – even one asking questions to further a criminal investigation – is a detention for Charter purposes. In R. v. Le, 2019 SCC 34, para 27, the majority opinion explains:

Having said that, not every police-citizen interaction is a detention within the meaning of s. 9 of the Charter. A detention requires “significant physical or psychological restraint” … Even where a person under investigation for criminal activity is questioned, that person is not necessarily detained … While “[m]any [police-citizen encounters] are relatively innocuous, . . . involving nothing more than passing conversation [,] [s]uch exchanges [may] become more invasive . . . when consent and conversation are replaced by coercion and interrogation” … [citations omitted]

15The present facts bear similarity to the earlier circumstances before the Supreme Court of Canada in R. v. Suberu, 2009 SCC 33, para 31. In that case, an officer attended a LCBO after receiving a call about the use of a fraudulent credit card. When the officer arrived, he observed an individual in the parking lot heading to his vehicle. An interaction followed. Brief questioning and a demand for identification occurred, following which an arrest took place.

16The Supreme Court of Canada held that Mr. Suberu was not detained, as the officer “was engaged in a general inquiry and had not yet zeroed in on the individual as someone whose movements must be controlled… There was no right to counsel because there was no detention”: para. 31.

17The line between interaction and detention is inherently factual and not always easy to discern. In their text, Detention, Arrest and the Right to Counsel [3], the authors helpfully discuss this topic and the relevant jurisprudence. At page 43, they write:

Situations like in R v Suberu, where a reasonable person would perceive that the police were responding to a dynamic situation or getting caught up to speed, will work against a finding of detention. A common example is where the police are attending an accident scene and sorting out the situation, even if the officers are simultaneously forming thoughts about potential regulatory or criminal liabilities.

18On the present facts, I am satisfied that Mr. Abrams was not detained. First, no physical detention occurred. Second, I do not conclude that a reasonable person would perceive any meaningful restraint on Mr. Abram’s liberty of choice or psychological freedom. On the evidence, he was waiting in the lobby when the officer arrived, and stayed there after she obtained his name and went to search her police computer. No demands or directions were provided. No investigative questions regarding the alleged fraud were asked. He was simply asked for his name, provided it, and then calmly waited for the officer to return. Upon her return, she arrested him for the outstanding charges and his detention for Charter purposes began.

(2) Were his section 10(b) Charter rights violated following the arrest?

19Mr. Abrams was arrested for the outstanding warrants, read his right to counsel, and accessed his counsel of choice. He was then held in a jail cell for eight hours. During those eight hours, the police searched his bags and, late in the morning, decided that additional charges would be laid. That investigation continued through the afternoon, with Constable Gibbons contacting lawful owners of some of the identity documents and completing paperwork.

20At approximately 4:00 pm, the police returned to Mr. Abrams' cell. According to Constable Gibbons’ testimony, an officer from the fraud bureau attended with her and Mr. Abrams was asked if he wanted to speak about the items in his possession. He declined. He was advised that he would additionally be facing drug, breach, and identity document-related charges. He received his rights to counsel again and requested a further consultation with Ms. McArthur.

21On the evidence, it is not entirely clear what came first – the offer of an interrogation or information regarding his new charges and the ability to speak with counsel again. What is clear, however, is that the police attempted to obtain evidence from Mr. Abrams regarding the identity documents in his possession before they ensured that he a) understood his change in jeopardy, and b) consulted with counsel anew regarding this change.

22Individuals under arrest have a right to information about their ability to access counsel, and to implement that access if they see fit. That implementation can only be effective if the individual understands the extent of their jeopardy. What one might say when charged with assault may differ from what they would say if facing a murder charge. Well-informed is well-armed. As the majority opinion in R. v. Sinclair, 2010 SCC 35, para 58 states:

Detainees have an absolute right to silence and, therefore, ultimate control over the interrogation. They have the right not to say anything, to decide what to say and when. It must be remembered that the opportunity to consult again with counsel is accompanied by a duty on the police to hold off further questioning until that consultation has taken place or a reasonable opportunity for it to occur has been provided… [emphasis added]

23That duty was not complied with here. I do not accept, contrary to the Crown’s submission, that this “offer” to speak to a police officer was anything other than an attempt to have Mr. Abrams provide an inculpatory statement. The police were there to investigate crime. Mr. Abrams had been found with certain documents in his possession, and the police wanted to further their investigation by asking him about those documents. The questions they wished to ask were intended to incriminate, not exculpate. Any other interpretation of events would be unreasonable.

24In conclusion, the defendant has established a breach of his section 10(b) Charter right by virtue of the police failure to hold off questioning until a further consultation with counsel occurred.

(3) Should evidence be excluded?

(a) “Obtained in a manner”

25This application seeks to exclude evidence seized from the defendant post-arrest, in particular the drugs and identity documents. These are seizures that occurred prior to the s. 10(b) Charter violation. As a result, before engaging in a fulsome s. 24(2) inquiry, a threshold question must be addressed: whether this evidence was “obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter”.

26Factually, the drugs and identity documents were already located and seized, pursuant to lawful authority, prior to the s. 10(b) violation. No statement or other significant evidence was located after. It is the Crown’s submission that any connection between these events is too tenuous to warrant s. 24(2) protection. Ms. McArthur, in her written material, properly points to R. v. Pino, 2016 ONCA 389, para 72 as the appropriate authority to consider in this situation.

27The ratio in Pino, approved of by the Supreme Court of Canada in R. v. Tim, 2022 SCC 12, para 78, mandates that I am to take a generous approach to the “obtained in a manner” question. Access to the s. 24(2) exclusionary scheme should not be so circumscribed as to frustrate the provision’s principal purpose in engendering respect for Charter values. The entire chain of events should be examined, to see if the evidence seized and the s. 10(b) violation “are part of the same transaction or course of conduct”: Pino, at para. 72. The connection, however, cannot be too “remote or tenuous”: Tim, at para. 78.

28In this case, I am satisfied a sufficient connection exists. It is not causal, but when I examine the events from a 7:23 am arrest to a 4:00 pm s. 10(b) violation, I am satisfied the seizures and the failure to hold-off are part of the same transaction. The police located the drugs and identity documents before noon. Rights were not re-provided until 4:00 pm. While I am prepared to allow some latitude on this point because the evidence suggests that some of this time was spent conducting and investigating the seizures, it troubles me that, even after leaving Mr. Abrams in a cell for almost eight hours, the police still sought to question him before ensuring full compliance with their s. 10(b) Charter obligations.

(b) The Grant test

29The modern test for exclusion of evidence under s. 24(2) of the Charter was pronounced by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, para 84. The relevant evidence is assessed during a three-part analysis, which assists in focusing the balancing of interests that must ultimately occur:

1. The seriousness of the Charter-infringing state conduct.
2. The impact of the breach on Charter-protected interests.
3. Society’s interest in an adjudication on the merits.

30A helpful method of gauging the significance of Charter-infringing conduct is to determine where it falls on a spectrum of seriousness, with “inadvertent or minor violations” at one end and a blatant or brazen disregard for Charter-protected interests at the other. See: R. v. Harrison, 2009 SCC 34, paras 23, 33-34, 39; R. v. Paterson, 2017 SCC 15, para 43; Le, supra, at para. 143.

31I find the Charter violation in this case to be meaningful. They sought to have Mr. Abrams make a decision of consequence – whether to speak to the police or not – before he knew his current legal jeopardy and before he had an opportunity to talk to his lawyer about it. It is either sloppy policing or an active disregard for s. 10(b) of the Charter. While I cannot conclude on this record which of these two descriptors most accurately applies, I have no difficulty in determining that the conduct falls closer to the blatant or brazen disregard end of the spectrum. I find this factor points towards exclusion.

32With regard to the applicant’s Charter-protected interests, I accept they were minimally impacted by the police conduct. He chose not to speak. While he was forced to make that decision without the benefit of renewed legal advice, he did receive that advice shortly thereafter. [4] While I earlier determined that the connection between the seized evidence and the Charter violation satisfied the “obtained in a manner” test, I have not lost sight of the fact that there is an absence of a causal connection. See: R. v. Mengesha, 2022 ONCA 654, para 12; R. v. Walker, 2020 ONSC 2139, paras 113-114. The distance between the violation and the evidence attenuates the impact of the violation, as does the fact that the seized items were obtained on good legal authority (search incident to a lawful arrest). Put another way, I accept that the drugs, airsoft pistol and identity documents were all discovered by lawful means. The subsequent s. 10(b) hold off violation had a minimal impact on Mr. Abrams’ Charter interests and no impact on the seizure of these items. This factor points towards admission.

33The final part of the test focuses on society’s interest in criminal allegations being determined on their merits. The seized items are reliable evidence that is significant to the Crown’s case. These are aspects that favour admission: Harrison, at paras. 33-34; Grant, at para. 84. The drug allegations are punishable by a maximum of life imprisonment: section 5(3), Controlled Drugs and Substances Act. Fentanyl has been described as “public enemy number one” by the Supreme Court of Canada, and carfentanil has been estimated to be “as much as 100 times more potent than fentanyl”: R. v. Parranto, 2021 SCC 46, paras 93, 95. Overall, this factor points to admission; strongly so, in the case of the drug offences.

34Ultimately, a section 24(2) analysis is qualitative, not quantitative; the three Grant factors are meant to ensure that all relevant features of a case are considered before admissibility is determined. It is not a 2 vs. 1 analysis. In my view, a mixed result is justified in the present case. The identity documents seized are more closely connected to the s. 10(b) hold off violation, and do not possess some of the drug-related aggravating circumstances listed in paragraph 33 above. It was the identity document investigation that the police sought to further prior to complying with their s. 10(b) obligations. I am satisfied the long-term interests of the criminal justice system are best served by exclusion of the identity documents seized from Mr. Abrams. That evidence shall be excluded from trial.

35However, as a result of the same balancing of interests inquiry, I am not satisfied that admission of the airsoft pistol, drugs, and drug-related paraphernalia would bring the admission of justice into disrepute. That evidence shall be included at trial.

III. Disposition

36Brandon Abrams’ application to exclude evidence is successful only so far as it relates to the identity documents seized from his property and person. It is unsuccessful regarding all other evidence seized.

Latimer J.

Released: February 18, 2025

Endnotes

[1] The drugs located were:
a) cocaine, 49 grams;
b) fentanyl, 49 grams;
c) carfentanil, 3.9 grams.

2It was never revealed in the evidence what these charges were, only that they were “less serious” than the drug and identity document charges.

3Garg, Davin and Anil Kapoor. Detention, Arrest, and the Right to Counsel, in Brian H. Greenspan and Vincenzo Rondinelli, eds, Criminal Law Series. Toronto: Emond, 2024.

4Notwithstanding the absence of direct evidence on this point, I am satisfied on a balance of probabilities that he did speak with Ms. McArthur again. The prisoner log records a call being made to her office at 4:15 pm.