2019 QCCQ 459, 2019 QCCQ 459

Translated from the original French R. c. Khan 2019 QCCQ 459 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF TERREBONNE LOCALITY OF SAINT-JÉRÔME “Criminal and Penal Division” No.: 700-01-155902-177 DATE: February 4, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE SANDRA BLANCHARD, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v. IBRAHIM KHAN Accused ______________________________________________________________________ JUDGMENT ON AN APPLICATION TO EXCLUDE EVIDENCE UNDER SECTIONS 7, 8, 9, 10( a ), 10(

b) AND 24(2) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS ______________________________________________________________________ OVERVIEW [ 1 ] In the context of his trial on charges of having used counterfeit cards and of personation, the accused alleges a violation of his constitutional rights and consequently seeks the exclusion of the evidence gathered further to his arrest. BACKGROUND [ 2 ] A single witness, Officer Karl Beauchemin, was heard during the voir dire .

His testimony can be summarized as follows. [ 3 ] At 12:31 p.m. on December 21, 2016, while on patrol, he heard over the radio from dispatch (”911”) that a fraud was in progress at the Bank of Montreal (”the bank”) at 1099 Curé-Labelle Blvd. in Blainville. [ 4 ] He stated that this information [ translation ] “was really vague”. [ 5 ] He arrived on the scene at 12:35 p.m. [ 6 ] When he entered the door, an individual talking on his cell phone was walking towards him, immediately followed by a person dressed in a suit, who Officer Beauchemin perceived to be the bank manager.

This person pointed to the individual in front of him, indicating that he was the defrauder. Officer Beauchemin immediately placed the accused under arrest for fraud. It was 12:36 p.m. [ 7 ] He informed him of his right to silence and his right to counsel without using the arrest rights card; he recited it from memory. [ 8 ] He then carried out a

summary search of the accused and found a wallet in his pocket. Looking inside, he discovered, among other things, two identity cards, i.e., a medical insurance card and a social insurance card, both of which the investigation eventually established as being counterfeit. [ 9 ] He handcuffed the accused, who was then brought to the police station in the patrol vehicle driven by Officer Tremblay. [ 10 ] They arrived at the station at 12:51 p.m.

Booking and the verification of his identity followed. [ 11 ] Officer Jonathan Tremblay read the “Rights in the event of arrest [1] form, which was written in English, and signed it. [ 12 ] The time appearing on this form is 1:09 p.m. [ 13 ] Subsequently, the accused spoke to his lawyer.

[ 14 ] At 5:09 p.m., he was freed on a promise to appear. [2] [ 15 ] It is important to note that, before entering the bank, Officer Beauchemin did not speak with the dispatcher and did not have a physical description of the suspect or any details about the fraud, other than the fact that it was connected with the use of counterfeit documents and that it was under way, according to the information provided by the person in charge of the bank. He also had not read the information in the CAD card. [3] [ 16 ] He did not know the person who pointed at the accused out to him, or even who he was.

He also did not speak with that person before placing the accused under arrest. [ 17 ] The mere fact that the person pointed at the accused convinced him to arrest him. [ 18 ] At the time, a lot of frauds were being committed when opening accounts in banking institutions in Blainville. [ 19 ] The outcome of the investigation showed that Officer Beauchemin arrested the right individual and that the person who pointed him out was a bank employee.

The evidence is silent, however, as to the outcome of the investigation in terms of whether or not fraud had been committed. [ 20 ] Finally, although the accused is Anglophone, Officer Beauchemin spoke to him in French throughout his intervention because he neither speaks nor understands English.

He asked the accused whether he understood and, according to him, the accused understood French and spoke [ translation ] “a minimum of French”. [ 21 ] Although he did not write it in his report, he insisted that the accused understood when he spoke to him. [ 22 ] At the station, the officers used the English versions of the various forms because the accused said he understood English better. THE ARGUMENTS OF THE PARTIES THE DEFENCE [ 23 ] According to the accused, Officer Beauchemin arrested him too hastily and without reasonable and probable grounds to believe that the offence had been committed.

Therefore, he argues that he was detained arbitrarily, in violation of s. 9 of the Canadian Charter of Rights and Freedoms (”the Charter ”). [ 24 ] Given the unlawful arrest, the search violated s. 8 of the Charter . [ 25 ] Also, the accused was not “promptly” informed of the reasons for his arrest. It was not until 1:09 p.m., 33 minutes after his arrest, that he was informed of the reasons in his own language. [ 26 ] Under s. 24(2) of the Charter , the evidence obtained must be excluded because of these violations.

THE PROSECUTION [ 27 ] The prosecution asserts that the police officer had ample grounds to arrest the accused: 1. the bank manager had formally identified the accused as the suspect; 2. in view of the fact that the grounds are transferable and in view of the urgency of the situation, the police officer was within his rights to place the accused under arrest. ANALYSIS

SECTION 9 OF THE CHARTER [ 28 ] Everyone has the right not to be arbitrarily detained or imprisoned. [4] [ 29 ] At its basis, s. 495(1) of the Criminal Code authorizes a peace officer to arrest without warrant if he or she has reasonable grounds to believe that a person has committed an offence. [ 30 ] In Storrey , [5] the Supreme Court noted that, to safeguard the liberty of citizens, the Criminal Code requires the police, when attempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that they have reasonable and probable grounds to believe that the person to be arrested has committed the offence.

In the case of an arrest made without a warrant, it is even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they base the arrest. [6] [ 31 ] The arresting peace officer must subjectively have reasonable and probable grounds on which to base the arrest. These grounds must be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest.

However, the Criminal Code does not require any more; the police officer need not establish a prima facie case for conviction. [7] [ 32 ] The Court is of the view that a reasonable person placed in the situation of Officer Beauchemin could not have concluded that

there were reasonable and probable grounds for the arrest. [ 33 ] A reasonable person would have first checked the information obtained and would have read the CAD card before intervening. Undoubtedly, a reasonable person would have considered the fact that nowhere on the CAD card is mention made of fraud. The reasonable person would therefore have spoken with the bank employee to understand the circumstances surrounding the alleged offence. [ 34 ] Here, the timeline is noteworthy.

Officer Beauchemin arrested the accused barely a minute after arriving at the bank – the time it took for him to exit his car and enter the branch – and less than five minutes after receiving the information from dispatch. [ 35 ] Officer Beauchemin cannot confirm whether the individual corresponded to the physical description of the suspect written on the card because he did not read it before intervening. [ 36 ] The only information he had was that a fraud was underway in the bank in question and that the individual was still on the premises. [ 37 ] Officer Beauchemin acted prematurely.

When he arrived at the bank, the offence was no longer underway. The accused was calm and was heading for the exit; he was not fleeing. The police officer acted solely because the person following the accused pointed at him, and this person appeared to be the bank manager – nothing more. [ 38 ] How could he even subjectively have reasonable and probable grounds to proceed with the arrest? Objectively, these grounds were clearly not justifiable.

The Court is of the view that he might have had a suspicion at most, but that he should have investigated the matter before acting. [ 39 ] The person who pointed at the accused was unknown to Officer Beauchemin. He did not know who he was or whether he was a bank employee, and he had never seen him or spoken to him before. In the circumstances, what degree of reliability should he have assigned to him? Was fraud really committed, and if so, what was the magnitude?

What is more, the evidence is silent as to the circumstances that led the bank manager to call 911. [ 40 ] This situation is distinct from one where a police officer who investigated the case, and who has reasonable and probable grounds to believe that an offence was committed, points at an individual so that the latter can be placed under arrest. It is easy to understand how in such circumstances, the grounds can be transferable from one peace officer to another.

This is not at all the case here. [ 41 ] Moreover, the Court finds that the charges are based on what was seized during the search incidental to the arrest. The prosecution has not filed any fraud charges. [ 42 ] Also, the police officer’s intuition, which later proved to be accurate, does not establish that he had reasonable grounds before he acted. [8] [ 43 ] Given the lack of reasonable and probable grounds that an offence was committed, the accused’s arrest was unlawful and violated the accused’s right protected by s. 9 of the Charter .

SECTION 8 OF THE CHARTER [ 44 ] Everyone has the right to be secure against unreasonable search or seizure. [9] [ 45 ] At common law, peace officers may carry out a search incidental to arrest, as long as the arrest is lawful. The search must be carried out “incidentally” to the lawful arrest, and it must be conducted reasonably. [ 46 ] Since the first criterion is not met, the accused’s right under s. 8 of the Charter was violated. PARAGRAPH 10(

a) OF THE CHARTER [ 47 ] Everyone has the right to be informed promptly of the reasons for his or her arrest or detention. [10] [ 48 ] It is worth noting that s. 29(2) (

b) of the Criminal Cod e imposes a duty on every one who arrests a person without a warrant to give notice to that person of the reason for the arrest. [ 49 ] The right protected by s. 10(

a) of the Charter is founded on the notion that one need not submit to an arrest if one does not know the reasons for it.

It is also founded on the fact that an individual can only exercise his or her right to retain and instruct council in a meaningful way if he or she knows the extent of the criminal charges. [11] [ 50 ] How does this apply in the present case? [ 51 ] Officer Beauchemin’s report, written at the time of the event, is silent as to whether the accused was informed of the grounds for his arrest at 12:36 p.m. [ 52 ] Clearly, in the evidence disclosed, the only place the grounds for his arrest are mentioned is on the “Rights in the event of arrest” form, signed by the police officers and the accused at 1:09 p.m., which was 33 minutes after the said arrest. [12] [ 53 ] Nevertheless, Officer Beauchemin continues to claim that he informed the accused of the grounds for his arrest and of his Charter rights immediately after placing him under arrest at 12:36 p.m., but that he did not write it in his report. [ 54 ] To support his statement, he relies on notes about what happened at the police station between 12:51 p.m. and 1:09 p.m.

[ 55 ] In cross-examination, his testimony became confused about what time it was when he informed the accused of his rights and about whether the accused understood them. Here is an excerpt: [ translation ] Question: According to you, you informed him of his rights in French because you do not speak English. Did you ensure that he understood what you were saying? Answer: He understood a minimum of French so I can say yes, but afterwards we had him fill out documents in English to ensure that he did in fact understand. Question: What did he say to you so that you would understand that he understood?

Answer: I would have seen it in what he said, he would have said something... He said that he understood French, it’s written in my report. Question: And I understand that when you say, “It’s written in my report,” you are referring to 12:51 p.m.? Answer: Yes. Question: You’re making a connection between 12:51 p.m. and 12:36 p.m.? Answer: Yes, well uhh the entire event. Question: So everything that is written after 12:51 p.m. is copied and pasted at 12:36 p.m.

Answer: No, it’s not written in the report, but yes the accused understood and yes once we were at the station we used the English documents. [ 56 ] Officer Beauchemin’s testimony and the evidence [13] show clearly that the accused was given his rights in English at 1:09 p.m. [ 57 ] Were they also given in French at 12:36 p.m.? [ 58 ] The Court is far from convinced, not only because it is not written in the police report, but also because it cannot consider Officer Beauchemin’s testimony reliable, since it lacks clarity and consistency. [ 59 ] The Court has seen and heard Officer Beauchemin, and on several occasions, he was unable to answer the defense counsel’s questions, justifying himself by saying that the events took place nearly two years ago and that certain details have since escaped him. [ 60 ] On the basis of the evidence, the Court finds the accused was informed of the grounds for his arrest and his Charter rights at 1:09 p.m. and not at 12:36 p.m. [ 61 ] Does this 33-minute period comply with the Charter right to be informed “promptly”? [ 62 ] In R. v.

Mian , the Supreme Court reinstated the acquittals rendered at trial. [14] In the circumstances, the trial judge was justified in concluding that the right protected by s. 10(

a) of the Charter was violated because it took 22 minutes for the police to inform the accused of the grounds for arrest. [ 63 ] In the case now before the Court, no exceptional circumstances justify such a delay. The accused was not violent. He cooperated. There was no emergency. [ 64 ] The Court is of the view that Officer Beauchemin did not “promptly” inform the accused of the grounds for his arrest and, consequently, that the accused’s right under s. 10(

a) of the Charter was violated.

ANALYSIS UNDER SECTION 24(2) OF THE CHARTER [ 65 ] According to the Supreme Court in Grant , the court hearing an application for exclusion under s. 24(2) of the Charter must assess and balance the effect of admitting the evidence on society’s confidence in the justice system, having regard to the seriousness of the Charter -infringing state conduct, the impact of the breach on the Charter -protected interests of the accused, and the societal interest in an adjudication on the merits. [15] [ 66 ] The evidence at issue is primarily the cards found in the accused’s wallet during the search that was characterized by the police officer as incidental to the arrest. [ 67 ] These cards turned out to be counterfeit and support the charges.

The seriousness of the Charter -infringing conduct of the state [ 68 ] [ translation ] “The more severe or deliberate the actions leading to the violation of constitutional rights, the more the courts must dissociate themselves from these actions by excluding the evidence to preserve public confidence in and ensure state adherence to the rule of law. Thus, the seriousness of the Charter -infringing conduct is at issue. [16] [ 69 ] In this case, the violations are serious and have a more-than-passing impact on the accused.

Officer Beauchemin arrested the accused without reasonable grounds, contrary to the Criminal Code requirements, and infringed his right not to be arbitrarily detained ( s.

9 of the Charter ). He conducted an unreasonable search and seizure ( s. 8 of the Charter ). [ 70 ] Officer Beauchemin failed to promptly inform the accused of the grounds for the arrest ( s. 10(

a) of the Charter ). [ 71 ] These are not trivial violations that only slightly undermine public confidence. These are three violations of Charter -protected rights. [ 72 ] Officer Beauchemin knew or should have known that his intervention infringed the Charter . [ 73 ] Even if the violations were not committed with a deliberate intent to breach the Charter , they indicate a lack of both rigour and respect for the Constitution . [ 74 ] There was no emergency. [ 75 ] This first factor weighs in favour of excluding the evidence.

The impact of the breach on the accused’s Charter rights [ 76 ] [ translation ] “The more serious the impact of the violation, the greater likelihood that the admission of evidence may signal that Charter rights of little actual avail, which would greatly diminish the respect these rights are due”. [17] [ 77 ] Officer Beauchemin’s intervention resulted in the accused’s detention between 12:36 p.m. and 5:09 p.m., a period of approximately 4 hours and 30 minutes. [ 78 ] The seizure of cards from the accused’s wallet also seriously infringed his rights. [ 79 ] The fact that Officer Beauchemin might have discovered counterfeit identity cards even without violating the accused’s rights is a consideration.

However, a mere possibility is not sufficient to justify using the evidence. [18] [ 80 ] Finally, the failure to inform the accused of the grounds for his arrest in a situation where the arresting officer, who did not speak English, handcuffed him, placed him in the patrol vehicle and brought him to the station, constitutes a serious violation in addition to the other two. [ 81 ] This second factor weighs in favour of excluding the evidence. Society’s interest in an adjudication on the merits [ 82 ] The offence, which is prosecuted by way of

summary conviction, is not the most serious one in the Criminal Code . However, there can be no doubt that the evidence seized is reliable and essential to the Crown. The prosecution would no doubt be compromised if it was excluded from the evidence. Moreover, society has an interest in seeing the Court fulfil its truth-seeking purpose and in the trial following its normal course, while ensuring the protection of the rights of the accused. This factor weighs in favour of admitting the evidence.

The balancing of the factors [ 83 ] The Court must now balance all the relevant factors. [ 84 ] The first and second factors clearly weigh in favour of excluding the evidence. [ 85 ] Several rights were breached, the accused was detained for a period of approximately four hours and thirty minutes, and there was no emergency requiring that such action be taken. [ 86 ] The Court cannot endorse the officer’s negligent and incomplete work, and it must disassociate itself from such conduct.

The use of the evidence gathered would be likely to bring the administration of justice into disrepute. [ 87 ] Having regard to all the circumstances, the Court is of the view that the importance for the state to respect Charter rights outweighs the consequences for society of a possible acquittal, despite the reliability of the evidence to be excluded. FOR ALL THESE REASONS, THE COURT: [ 88 ] GRANTS the application; [ 89 ] ORDERS the exclusion of the evidence gathered after the arrest of the accused. __________________________________ SANDRA BLANCHARD, J.C.Q. Mtre Naomie Bisson-Paiement

Director of Criminal and Penal Prosecutions For the prosecution Mtre Haroutioun Haladjian Les avocats Poupart, Touma For the accused Date of hearing: December 3, 2018