Reasons for Decision – Defence Charter Application

Court File No.: CR-23-90000753
Date: 2025-05-07
Superior Court of Justice – Ontario
Re: R. v. Omer Ibrahim
Before: S.F. Dunphy
Counsel:
Neil Cockerill, for the Public Prosecution Service of Canada
Ben Elzingacheng, for the Respondent Ibrahim
Heard at Toronto: April 22-24, 2025

Introduction

[1] Mr. Ibrahim was arrested on October 21, 2022 and was being tried before me on charges that include possession for the purpose of trafficking of fentanyl and cocaine and possession of ammunition that were found during a police search of a satchel that was slung over his shoulder and across his chest when he was confronted by police and arrested. This application by the defence sought to exclude from the evidence at his trial the fruits of that police search on the grounds that the search of the satchel he carried allegedly violated the rights of Mr. Ibrahim under s. 8, s. 9 and s. 10(b) of the Charter of Rights and Freedoms and ought to be excluded pursuant to s. 24(2) of the Charter.

[2] The evidence on this application and the trial proper proceeded on a blended basis. The Crown presented its viva voce evidence on both and rested its case thereafter. The defence called Mr. Ibrahim as a witness on its application following which argument was heard on the application. I undertook to the parties to deliver a “bottom line” ruling on the application with reasons to follow in order to permit the defence to consider its position on whether to call evidence at trial taking the outcome of this application into account. I delivered that bottom line ruling orally from the bench on April 24, 2025 dismissing the defence application with written reasons to follow. These are those reasons.

[3] I would like to preface my reasons with an expression of my thanks to both parties for the efficient manner in which the blended trial and voir dire was organized and presented, including a detailed agreed statement of facts. This co-operation enabled both parties to focus on the critical issues where their views differed.

Background Facts

[4] At approximately 2:05 pm on Friday, October 21, 2022 Officer Clendinning and Officer Gholamali were patrolling the Victoria Street and Dundas area of downtown Toronto on their bicycles. They passed a young man who was standing on Victoria Street just north of Dundas Street beside a public bicycle docking station. The young man was wearing a dark jacket over a hoodie-type sweater with a covid mask on his face covering his nose and mouth. He may also have had his hood up covering some of his head. They passed him within a very short distance, the docking station occupying a portion of the sidewalk area already.

[5] After proceeding only a very short distance past the young man – the defendant Mr. Ibrahim – Officer Clendinning stopped his bicycle and circled back towards the young man. He recognized the young man as Mr. Ibrahim. He had an encounter about six months earlier with Mr. Ibrahim and knew him to be the object of an arrest warrant having attempted in vain to locate him at his home on several occasions after the incident in April 2022.

[6] That warrant was subsisting in fact on October 21, 2022 when Mr. Ibrahim was arrested under its authority.

[7] Officer Clendinning had mentioned something of this earlier incident to his partner Officer Gholamali (who was not present for that initial April 2022 encounter), during the course of working together with him but there was no express verbal communication between them on this subject during the initial stages of this encounter. Having observed his partner stop and turn back, Officer Gholamali simply followed his partner’s lead thereafter. He did not initially connect the young man before them to the April encounter he had heard some details of from his partner but came to do so gradually as this encounter between Officer Clendinning and Mr. Ibrahim unfolded over the following few minutes.

[8] At the point where he turned his bicycle around, Officer Clendinning was almost certain that the young man he was observing was the same Omer Ibrahim whom he knew to be wanted from that previous encounter. In turning his bicycle around, he had decided to arrest him under the outstanding warrant. However, before doing so, he elected to make sure of his identification by asking the man to lower his covid mask. Accordingly, he asked the young man to lower his mask. He complied. Officer Clendinning considered his identification of the young man as Mr. Ibrahim to have been elevated from “almost certain” to “positive” after he saw the man with his mask lowered.

[9] There is some conflict in the evidence as to whether the Officer merely asked Mr. Ibrahim to lower his mask (as Officer Clendinning said he did) or whether he leaned over and pulled it down himself (as Mr. Ibrahim said that he did). I am persuaded that Officer Clendinning’s account of this aspect of the encounter is to be preferred. While Officer Clendinning was proceeding to arrest Mr. Ibrahim under the warrant, Mr. Ibrahim protested quite vocally that there was no probable cause to stop or search him and spontaneously mentioned that he had been detained without cause and asked to lower his mask “a little”. That spontaneous utterance, captured on the body-worn camera of both officers, is consistent with Officer Clendinning’s account but does not (without some stretching) match Mr. Ibrahim’s testimony about the matter before me. I do not consider this evidentiary controversy to be particularly material though. The mask was lowered and the identification was confirmed within seconds of Officer Clendinning turning his bicycle around.

[10] Having elevated his identification comfort level from “almost certain” to “positive” when viewing Mr. Ibrahim’s uncovered face, Officer Clendinning informed Mr. Ibrahim that there was an outstanding warrant for his arrest, took hold of Mr. Ibrahim’s arm and proceeded to assist Officer Gholamali in placing handcuffs on him. Throughout the initial few minutes of this encounter, Officer Gholamali was simply inferring from his partner’s actions and his dialogue with Mr. Ibrahim what was going on and what he could usefully do to assist.

[11] All of the foregoing events consumed not much more than a minute. Both officers activated their body worn cameras almost immediately after Officer Clendinning turned about to have another look at Mr. Ibrahim. The audio track of the recordings does not begin until 30 seconds after the cameras were activated (this is how they are configured) and the video portion was partially obstructed for much of those same 30 seconds by the windbreakers both officers were wearing. Those windbreakers were both soon opened and both cameras recorded good quality audio and video recordings of the interactions between the officers and Mr. Ibrahim thereafter.

[12] Over the following seven minutes, Mr. Ibrahim at first denied his identity before admitting it when confronted with his real name and the prospect of added charges should he lie about his identity. When told there was a warrant for his arrest, he at first denied this as well but then said that his lawyer had taken care of it. Officer Clendinning offered to call the station to confirm if the warrant was still outstanding, promising to release him should it prove to have been withdrawn. While Officer Clendinning made this call on his cell phone, Officer Gholamali proceeded to perform a pat-down safety search, informing Mr. Ibrahim of what he was doing before doing so. Before this search began, Officer Clendinning informed the protesting Mr. Ibrahim that this was a search incident to arrest and would include a search of the satchel he was wearing draped around his neck and over his chest.

[13] The satchel was first removed and placed on the seat of one of the docked bicycles. Various items were then removed from his pockets including a cell phone, a glasses case with a visible small clear ziplock bag inside, some rolling papers and a grinder.

[14] After proceeding this far into the search but prior to searching the satchel, Officer Gholamali overheard Officer Clendinning ask whether the office should use their “GO” (general occurrence) number or a different one. Officer Gholamali immediately understood that this meant that Officer Clendinning had confirmed via telephone call to the station that the arrest warrant was in fact still outstanding and that accordingly Mr. Ibrahim was not going to be released but was to be transported to the station under the warrant.

[15] He then retrieved the satchel from where he had placed it and proceeded to search it. While Officer Gholamali was in the process of searching the satchel, Officer Clendinning finished the call and verbally confirmed what Officer Gholamali had already surmised – that the arrest warrant for Mr. Ibrahim was still outstanding.

[16] The search of the satchel revealed a bag containing what appeared to be crack cocaine, another bag containing what appeared to be fentanyl and a thin metal case that when opened was revealed to be a digital scale. The officer’s on-the-scene suspicions were subsequently confirmed by laboratory testing to be correct: 19.72g of fentanyl and 32.83g of crack cocaine. Other items found in the satchel included a container of cannabis, a cell phone charger and cable, a “Chatr” SIM card package and various zip lock bags. Finally, a bag containing eight .38 calibre bullets was found in the bottom of the satchel. The discovery of the ammunition necessitated a further pat-down search of Mr. Ibrahim to ensure that there was no concealed gun on his person.

[17] The identification and continuity of the narcotics and the ammunition and the quantity of each are confirmed in the Agreed Statement of Facts.

[18] After these items were discovered in the search of the satchel, Officer Clendinning proceeded to read the caution and rights to Mr. Ibrahim from his notebook and advised him of his arrest under the warrant as well as under the additional charges of possession for the purpose of trafficking of cocaine and fentanyl. This was done at approximately 2:15pm. However, from approximately 2:12pm onwards, Mr. Ibrahim had been advised that the arrest warrant was in fact outstanding at which point he immediately asked to speak to his lawyer and efforts were made thereafter to locate his lawyer’s phone number. Officer Gholamali informed him that they could not put him in touch with his lawyer there on the street because there was no opportunity to afford him privacy but that this would be done at the station. Attempts to get the lawyer’s number from Mr. Ibrahim’s phone were frustrated because his battery was dead. The number was located and the call placed shortly after Mr. Ibrahim was booked at the station. There is no issue taken with the manner in which this occurred at the station beyond the defence position that access to counsel ought to have taken place on the roadside, particularly given Officer Gholamali’s admission that he had done this at least once previously.

Issues to be Argued

[19] The applicant’s s.8 Charter claim is premised on the detention and arrest of Mr. Ibrahim having been unlawful and thus a violation of his rights under s. 9 of the Charter. If the arrest is found to have been lawful, there is no suggestion that the search in this case was not a valid search incidental to arrest.

[20] The second major leg of the applicant’s claim is that the applicant’s s. 10(b) Charter rights were violated by failing to inform him of his rights to counsel in a timely fashion upon his detention or arrest (as the case may be) and to have facilitated his rights to counsel by placing him in contact with his named lawyer upon being asked to do so while he was still on the street instead of waiting until after his transport to the station.

[21] Both parties concur that Mr. Ibrahim was arrested no later than the moment when Officer Clendinning placed his hand upon the accused after Mr. Ibrahim’s mask had been lowered. The defence claims that the arrest should be considered to have occurred when Mr. Ibrahim’s path was physically blocked and the officer issued a command to Mr. Ibrahim to lower his mask (or, in Mr. Ibrahim’s testimony, physically removed the mask himself). The difference in time between these two points is short – perhaps only three or four seconds. Since I find that the command to lower the mask was a lawful one during the very brief initial period of investigative detention that preceded arrest, nothing turns on this short interim period of detention prior to arrest.

[22] The Crown concedes that the seven-minute time frame between the arrest of Mr. Ibrahim at 2:05 pm and the beginning of efforts to put him in touch with counsel (at 2:12 pm) amounted to a breach of the s. 10(b) informational rights of Mr. Ibrahim but denies that there was any reasonable opportunity to facilitate access to counsel before Mr. Ibrahim was brought to the station. The defence describes the length of the breach as being slightly longer (until 2:15pm when Officer Clendinning formally read the caution and rights to counsel wording from his notebook to the accused). The 3-minute difference between their positions goes solely to the remedy under s. 24 of the Charter.

[23] The following factual and legal questions arise for determination on this application:

a. When was Mr. Ibrahim detained?
b. When was Mr. Ibrahim arrested?
c. Was the arrest of Mr. Ibrahim lawful?
d. Were Mr. Ibrahim’s rights under s. 8 of the Charter violated by the search of the satchel incident to arrest?
e. Were Mr. Ibrahim’s rights under s. 10(b) of the Charter violated?
f. Ought any evidence be excluded upon the application of s. 24(2) of the Charter?

Discussion and Analysis

(a) When was Mr. Ibrahim detained?

[24] Officer Clendinning’s evidence confirms that he had identified and intended to arrest Mr. Ibrahim under the warrant when he turned his bicycle around. Nevertheless, he decided to take one further step to confirm his identification of Mr. Ibrahim by asking him to lower his mask. It was only after Officer Clendinning confirmed his initial identification in his own mind that he took hold of Mr. Ibrahim’s arm. When asked what the grounds for his detention were by Mr. Ibrahim, he told him the grounds were the arrest warrant outstanding.

[25] The time consumed by turning the bicycle, asking Mr. Ibrahim to lower his mask and Mr. Ibrahim’s compliance with that police command was not more than a few seconds.

[26] Whatever the degree of Officer Clendinning’s certainty about his identification of Mr. Ibrahim in the moment (as expressed when testifying after the fact), he took the prudent and reasonable step of verifying his very strong suspicion by asking Mr. Ibrahim to lower his mask. I conclude that Mr. Ibrahim was investigatively detained in this initial stage. His passage was physically blocked by a policeman obstructing his path and he was clearly not free to go. However sure he was of his identification of Mr. Ibrahim, Officer Clendinning decided to confirm his belief by asking for the mask to be lowered. For the very few seconds that this state of affairs prevailed, Mr. Ibrahim was under investigative detention.

[27] Officer Clendinning had the right to verify Mr. Ibrahim’s identity in those circumstances and to do so by asking him to lower his mask to confirm the visual identification already made in the manner that he did.

[28] Given my conclusions regarding the grounds to arrest Mr. Ibrahim, there is no material difference to be drawn between the brief period of investigative detention (a few seconds only) and the period of his arrest that superseded the investigative detention immediately afterwards.

(b) When was Mr. Ibrahim arrested?

[29] Immediately upon observing Mr. Ibrahim’s face uncovered following the request he made, Officer Clendinning confirmed his very strong suspicion about Mr. Ibrahim’s identity. He took action by placing his hand on Mr. Ibrahim’s arm, thereby taking him into custody while informing him of the outstanding arrest warrant. At this point, Mr. Ibrahim was under arrest. Officer Clendinning had the intention of arresting him under the warrant, had confirmed Mr. Ibrahim’s identity to his satisfaction and had taken him into custody by taking control of his arm. While he did not pull out his notebook and read the caution and notice contained therein, he communicated in explicit terms that Mr. Ibrahim was in custody and why (i.e. the outstanding warrant for his arrest). He did not say “you are under arrest” in those precise words, but the words he did use unambiguously conveyed the same meaning to Mr. Ibrahim who immediately protested that there was no warrant outstanding and then that his lawyer had dealt with it.

[30] Placing the arrest in the context of the initial sighting of Mr. Ibrahim standing on the street near the city bicycle docking station as police passed by him on their bicycles, the total elapsed time to the point of his arrest was considerably less than 30 seconds. The arrest of Mr. Ibrahim superseded his initial detention and did so within a matter of considerably less than 30 seconds.

(c) Was the arrest of Mr. Ibrahim lawful?

[31] The defence position is that police required “reasonable grounds” to arrest Mr. Ibrahim and that those grounds must be objectively and subjectively reasonable at the point of arrest and not by reference to subsequently acquired information. An arrest without reasonable grounds would be unlawful and a violation of the s. 9 Charter rights of the individual. While this is a reasonably correct summary of the law for arresting someone without a warrant under s. 495(a) or (b) of the Criminal Code, it is of no application to the arrest of a person under a valid and subsisting warrant which was the case here.

[32] The “reasonable grounds” language of s. 495(1)(c) in relation to the arrest of a person under a warrant is directed at the existence of the warrant under which the person is being arrested and not the identity of the person arrested as being the person named in the warrant.

[33] Section 28 of the Criminal Code extends protection from criminal liability to a person who arrests someone in good faith and on reasonable grounds believing them to be the person named in the warrant should they arrest the wrong person. There is no attribution in the Criminal Code of liability for arresting the right person even if the identification that led to the arrest is alleged to have been objectively unreasonable.

[34] The entire premise of this aspect of the application is flawed. Police are not required to demonstrate reasonable grounds for identifying a person who is in fact wanted under a warrant. That inquiry is reserved for cases where police arrest a person in error – either because the warrant did not exist (s. 495(1)(c)) or because the person arrested was not the person named in the warrant (s. 28). Reasonable grounds for being right are not required to be proved.

[35] The arrest of Mr. Ibrahim by Officer Clendinning was clearly lawful. He was exactly who Officer Clendinning thought he was and there was an outstanding warrant for his arrest in fact just as Officer Clendinning thought there was. The legality of that arrest is in no way dependent upon having or demonstrating reasonable grounds for his belief in the existence of the warrant or in the identity of Mr. Ibrahim.

[36] While not required in light of the foregoing conclusion, I also have no hesitation in finding that Officer Clendinning had reasonable grounds to believe the man he observed standing on Victoria Street was Mr. Ibrahim and that there was a warrant for his arrest.

[37] First, it is beyond doubt that Officer Clendinning immediately identified the man he saw as Mr. Ibrahim within at most a few moments after cycling past him. This is clear from:

a. Officer Clendinning’s evidence which was quite explicit and unshaken on this point;
b. The fact that Officer Clendinning acted on this belief so swiftly and unequivocally – stopping, turning his bicycle around, dismounting then approaching Mr. Ibrahim with the single request that Mr. Ibrahim lower the Covid mask that partially covered his face;
c. The fact that Officer Clendinning immediately identified Mr. Ibrahim by his first name and then challenged Mr. Ibrahim when he initially provided a false name, reciting his correct first and last name to him and explaining to him how it was that he recognized him; and
d. The fact that Officer Clendinning had a previous interaction with Mr. Ibrahim in or about April 2022, had made several unsuccessful attempts to apprehend Mr. Ibrahim thereafter and had personal knowledge of the issuance of the arrest warrant arising from that interaction.

[38] I take it as a given that the identification by eyewitnesses can be subject to error and depends on a variety of circumstances including how remarkable or forgettable the incident giving rise to the initially stored memory was relative to the comparison being made, stress and other circumstances. I also take it as a given that the capacity of individuals to identify people is not a gift uniformly distributed in the population at large. Some people are better able to connect an observation to a memory and put a name to a face than others. Good politicians in particular are often said to have an uncanny ability to connect the faces before them at a rally or in a receiving line to introductions made years in the past. Former Prime Ministers such as Jean Chretien and Brian Mulroney were legendary for their aptitude in this department. I readily place myself near the opposite end of the spectrum in terms of ability to connect a face to a name.

[39] Officer Clendinning unquestionably concluded that the man he saw was not just a familiar face but a particular familiar face whose name he knew and whose connection with a particular incident he had been witness to. He did so based on the totality of what his senses perceived. This is precisely the way identification works. It is not based on one single thing observed, it is based on everything observed and is as much the work of the conscious as the subconscious mind. While his description of the factors he relied upon may appear generic and applicable to large numbers of young black men in a city with tens of thousands of young black men, that is not what happened here.

[40] The thesis of a “lucky guess” is exceptionally improbable in these circumstances and must be entirely excluded. Officer Gholamali described his partner as a “computer” when bantering with Mr. Ibrahim after the arrest. I suspect that intended compliment understates the rapidity and accuracy of Officer Clendinning’s identification in this case. I have never seen facial recognition software make as swift and decisive an identification as Officer Clendinning made in this case.

[41] Officer Clendinning had first-hand knowledge of the existence of the warrant and had a good faith belief that it was still outstanding at the point where he proceeded with the arrest under that warrant. He was not obliged to re-confirm that belief before executing the warrant in the circumstances of this case. The fact that he agreed to verify the existence of the warrant to placate Mr. Ibrahim after the arrest in no way impacts the validity of the arrest in the first place.

[42] While reasonable grounds to arrest the actual subject of an actual warrant are not required to be demonstrated, Officer Clendinning had such grounds at all events. The arrest of Mr. Ibrahim was a lawful arrest under a subsisting warrant and Officer Clendinning had reasonable grounds to make that arrest and identification at all events.

(d) Were Mr. Ibrahim’s rights under s. 8 of the Charter violated by the search of the satchel?

[43] Having found that Mr. Ibrahim was the object of a valid and subsisting warrant at the time of his arrest, his arrest was a lawful arrest under s. 9. There is no issue taken by the defence with the manner in which the search was undertaken if, as I have found, the arrest was lawful.

[44] I find that neither the search of Mr. Ibrahim’s person nor of the satchel he carried was conducted in breach of his rights under s. 8 of the Charter. These were clearly both valid searches incidental to a lawful arrest.

(e) Were Mr. Ibrahim’s rights under s. 10(b) of the Charter violated?

[45] The Crown does not contest that the failure to advise Mr. Ibrahim of his rights to counsel for seven minutes following the time of his arrest was a breach of the s. 10(b) Charter right of Mr. Ibrahim to be informed of his right to retain and instruct counsel without delay. Whether the delay is characterized as seven minutes (to the point where Mr. Ibrahim asked to be put in touch with counsel and the officers were occupied with attempting to find his number) or ten minutes (to the point where Officer Clendinning took out his notebook and formally read the caution and rights to counsel formula on the cover) is a matter of some disagreement between the parties but adds nothing to the analysis of remedy.

[46] The defence asked me to find that the breach went beyond a mere informational breach to a breach of implementation of the right to instruct counsel without delay as well by reason of the failure to facilitate communication between Mr. Ibrahim and his counsel from the sidewalk instead of waiting to transport him to the station. In support of this position, the defence relied upon the evidence of Officer Gholamali that on one occasion he arranged to put an arrestee in touch with counsel from the roadside prior to bringing the detainee into the station.

[47] The fact that a particular officer managed the feat on a single occasion over a multi-year career does not establish that the option was realistically available on this occasion. The officers on this occasion were on bicycle and necessarily had to rely on back-up to transport the detainee to the station in a police car. Mr. Ibrahim’s own cell phone was inoperable due to an exhausted battery and police officers were under no obligation to lend a prisoner their own phones for this purpose. While handcuffed, Mr. Ibrahim boasted that he could have easily outrun the officers if he wanted and regretted not having done so. Further, even with his hands secured behind his back with handcuffs, Mr. Ibrahim was able to remove items from his pocket and move them around. He could not have made a call from that location with any degree of privacy absent his hands being freed from handcuffs and there was simply no way to ensure the security of his detention were he to have been freed from handcuffs in that insecure location. The suggestion that a private call to counsel could have been responsibly arranged in those circumstances is utterly unrealistic.

[48] I find that Mr. Ibrahim’s right to be informed of his right to retain and instruct counsel without delay was violated – whether for seven or ten minutes is of no materiality to my analysis of the appropriate remedy. I do not find that there was a violation of his right to instruct such counsel without delay by arranging a call to counsel from the sidewalk without waiting to transport him to the station for a formal booking.

(f) Ought any evidence be excluded upon the application of s. 24(2) of the Charter?

[49] The Crown concedes that the temporal connection of the Charter breach at issue in this case satisfies the R. v. Pino, 2016 ONCA 389 test for evidence “obtained in a manner” under s. 24(2) of the Charter. The fentanyl, cocaine and ammunition were all found in a search of the satchel that was on Mr. Ibrahim’s person at the time of his arrest and the search that uncovered them was undertaken at a time when police had an undischarged duty to inform Mr. Ibrahim of his rights to counsel. I am thus required to consider whether, in all of the circumstances, the evidence obtained in this manner ought to be excluded pursuant to s. 24(2) of the Charter applying the R. v. Grant, 2009 SCC 32 analysis.

[50] In my view, this is not a case where the admission of this evidence would bring the administration of justice into disrepute.

[51] While there can be no dispute that the rights of a detained or arrested person to be advised of their rights to counsel is an important Charter right and every violation of the Charter brings the administration of justice into disrepute to some degree, the circumstances of this particular breach are clearly at or near the least serious end of the spectrum of such breaches:

a. The failure and the breach in question were temporally connected but in no way causally connected to the evidence sought to be excluded– the search undertaken by police was not in any way dependent upon obtaining Mr. Ibrahim’s consent (which he quite explicitly did not provide) nor was it impacted in any way by the absence of advice from counsel;
b. Without excusing the failing of police to adhere to well-established procedures upon arrest and detention, Mr. Ibrahim’s insistence that the warrant for his arrest had been “taken care of” and his having initially attempted to provide police with a false name all operated to distract police from performing their duty as promptly as they ought to have;
c. There is no suggestion in the evidence that this incident is in any way representative of a systemic failing on the part of police generally or these officers in particular to give proper priority to the discharge of their Charter duty to detainees. To the contrary, it was such a unique set of circumstances – the chance encounter and recognition and the distractions introduced by Mr. Ibrahim himself – that a systemic failure is a quite unlikely characterization of the facts here; and
d. An examination of the interaction as a whole also supports the lack of any systemic failure. Both officers bent over backwards to help locate the co-ordinates of Mr. Ibrahim’s lawyer, conducting searches for his number on their own phones or offering to assist in putting him in touch with friends or family. They repeatedly cautioned him to stop talking until after he had been in touch with his lawyer. There was a failure, but it was a human failure not a deliberate one.

[52] The impact upon the Charter-protected rights of the accused in this case was relatively minor:

a. The time involved was only a few minutes – between seven and ten minutes – and there can be no suggestion that police attempted to take advantage of their own failure to discharge their informational duty during that delay; and
b. Mr. Ibrahim had been lawfully arrested and detained under a valid and subsisting warrant before the search was undertaken and it was virtually inevitable in those circumstances that the satchel would have been searched before he was placed in the police car for transport or at the station during the booking process at the latest: R. v. Dautruche, 2024 ONCA 426, para 20.

[53] Finally, society’s interest in a decision on the merits of this case is exceptionally strong. The evidence sought to be excluded touches upon two of the most significant public order issues that are currently tearing apart the fabric of this community. Trafficking in narcotics in general and fentanyl in particular is exacting a horrific toll on our community in terms of death and injury: R. v. Parranto, 2021 SCC 46. While no gun was found in this case, ammunition was found and ammunition is a necessary ingredient in gun violence which also exacts a significant toll of death and destruction in this community.

[54] I find that all three Grant factors strongly favour inclusion of the evidence. I find that the admission of the evidence obtained during the search of the satchel – the cocaine, the fentanyl and the ammunition – enhances the core truth-seeking function of the court without bringing the administration of justice into disrepute. To the contrary, the exclusion of this evidence in these circumstances would tend to have the opposite effect of appearing unduly technical, lacking in common sense and damaging the public’s confidence in the administration of justice in a balanced and reasonable manner.

Disposition

[55] For the foregoing reasons I conclude that the arrest of Mr. Ibrahim under a valid and subsisting warrant was a lawful one and that the subsequent search of Mr. Ibrahim incident to that arrest, including the search of the satchel he carried, did not constitute a violation of his rights under s. 8 of the Charter.

[56] On the other hand, I find that there was an admitted failure by police to inform Mr. Ibrahim of his rights to instruct and retain counsel without delay in violation of s. 10(b) of the Charter. While the search of the satchel by police occurred after the violation of Mr. Ibrahim’s s. 10(b) rights, I do not find that a balanced view of the circumstances warrants an exclusion of the product of that search from evidence at his trial pursuant to s. 24(2) of the Charter. The Grant analysis decisively favours inclusion. The seriousness of the breach and the impact of the breach upon the detainee in this case were both slight whereas society’s interest in the adjudication of this case upon its merits is particularly high.

[57] The defence application was accordingly dismissed.

S.F. Dunphy
Date: May 7, 2025