R. v. Hamouth, 2021 ONCJ 444

ONTARIO COURT OF JUSTICE CITATION: R. v. Hamouth , 2021 ONCJ 444 DATE: 2021 08 24 Toronto Region BETWEEN: HER MAJESTY THE QUEEN — AND — RENE HAMOUTH Before Justice L. Feldman Heard on June 11, 2020, July 2, 26, 27, 30, Aug. 20, 24 2021 Reasons for Judgment released on August 24, 2021 C. Lindo-Butler.................................................................................... counsel for the Crown A. Gold, L.

Metcalfe.......................................... counsel for the accused Rene Hamouth FELDMAN J.: Introduction [ 1 ] Rene Hamouth entered not guilty pleas to charges of possessing a firearm without holding a license (s. 91(1)), possessing a firearm without a holding license (s. 92(2)), and possessing a loaded prohibited firearm without holding a license permitting such possession (s. 95(1)). [ 2 ] On June 22, 2019, police executed a search warrant at 199 Norton Ave, purportedly Mr. Hamouth’s residence, in North York.

It had been issued as part of an investigation of his son, Ryan, that was focussed on Ryan’s alleged unlawful possession of firearms. Police also conducted searches at two other residences, where Ryan’s respective girlfriends lived, as well as in relation to his two vehicles. [ 3 ] Four firearms and ammunition were found in the defendant’s home. In an earlier ruling, I dismissed a defence application to have the search warrant set aside and the weaponry seized excluded from the evidence [1] . Mr. Hamouth was arrested. [ 4 ] The defendant submits that following the arrest, his rights under Charter s. 10(

b) were infringed. He asks that the firearms and ammunition seized be excluded from the evidence under s. 24(2). The Crown does not seek to adduce two inculpatory utterances. [ 5 ] This trial will proceed as a blended hearing. The Evidence At the Hamouth Residence [ 6 ] On June 22, at 8:06 p.m., Mr. Hamouth answered Det. Jeffery Tavares’s knock on his door. The officer produced the search warrant. The defendant let the police in. He was detained. He was the only one in the house. Police smelled marihuana upon entry. [ 7 ] D.C. Jesse McDonald testified that the priority at the time was to secure the residence, find the firearms and then make the

arrest. That was done. Mr. Hamouth was arrested at 8:25 p.m. The delay to that point in providing rights to counsel was reasonable. [ 8 ] During the search of the house, police found 2 pistols and a magazine holder on a shelving unit in a basement bedroom. One, a Keltec pistol, had one bullet in its chamber and several rounds in its magazine. It was ready to fire. The other, a Glock 23, had bullets in its magazine but none in its chamber.

As well, police found a 12-gauge shotgun, in addition to 21 rounds of ammunition, in a gym bag next to a cold storage area in the basement. [ 9 ] On the second floor, police located a loaded Taurus revolver under a pillow on the bed in the master bedroom and seized a 12- gauge Winchester shotgun in plain view leaning against the wall next to the bed. Both firearms had bullets in them. [ 10 ] There was clothing on the bed and toiletries on the bathroom countertop. Mr. Hamouth’s personal identification was found in the nightstand beside the bed.

As well, his passport and a bank draft in his name were located in the walk-in closet. Police also observed marihuana and drug paraphernalia on top of an ottoman. [ 11 ] In a small storage room across from the kitchen, police discovered two boxes of ammunition.

The total ammunition included: a box of 20, 38-calibre Hornady rounds; a box of 25, 38-calibre American Gunner rounds; 28, 12-gauge Winchester rounds; 5, 357-calibre Taurus rounds; 3, 9-ml Winchester Luger rounds; 26, 40-calibre rounds for the Glock pistol. [ 12 ] Ryan Hamouth and his girlfriend, Natalia Koch, were arrested earlier at 7:43 p.m. on a street nearby. Given rights to counsel, they both asked for Alan Gold. Ryan was transported to 32 Division by D.C. Joe Perelli and D.C. Monish Jaswal because no transport officers were available. [ 13 ] On route, at 9:06 p.m., D.C. Perelli tried to call Mr.

Gold as a courtesy to let him know his client was in custody. He did a Google search and phoned the number listed. He didn’t write it down. There was neither answer nor voicemail. It didn’t seem to occur to the officer that another such call at the station in the early morning hours of a weekend might be a waste of time. [ 14 ] Natalia, seven months pregnant, was brought to 199 Norton, so that she could use the washroom. She remained there sitting at the dining room table with the defendant while the home was being searched. [ 15 ] As noted, once the firearms were seized, D.C.

McDonald arrested Rene and Natalia, neither of whom were authorized to possess firearms. He advised both of their rights to counsel. Mr. Hamouth asked to speak to Alan Gold, as did Natalia. [ 16 ] In cautioning the defendant, the officer said: “…do you wish to say anything in answer to the charge, you are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence”. The defendant made an inculpatory utterance. [ 17 ] D.C.

McDonald ought to have known that since 2018, the Supreme Court of Canada has ruled that asking for a response from a detainee at this point in the absence of advice from counsel was an undermining of that individual’s right to silence [2] . The Crown, appropriately, does not seek admission of the utterance. [ 18 ] D.C. McDonald agrees there was constant chatter between himself and Rene for the next two hours prior to his being transported. He has no notes of anything said. [ 19 ] At one point, during the search, Det. Tavares asked the defendant why he had all these guns.

He received an inculpatory answer, always a risk where access to the advice of counsel is delayed. [ 20 ] At the time, Det. Tavares believed Rene had been given rights to counsel but did not know, nor did he ask, if the defendant had asked to speak to his lawyer. His view of the law is that even were that the case, he had a right to ask questions, and that it was the detainee’s choice to answer or not. [ 21 ] He is incorrect. Where a detainee indicates a desire to exercise their s. 10(

b) rights, he or she must be given a reasonable opportunity to do so and the officer has a duty to “hold off” eliciting incriminating evidence until then [3] . Det. Tavares ought to have known that. In this context, it renders self-serving his justification for his question about the firearms as “off-the cuff”. It may be that he thought the case was solid and he was just curious. [ 22 ] During the two hours spent at the residence, D.C. McDonald recalls Natalia asking to speak to Alan Gold a couple of times.

He felt the police could not safely provide privacy for the call as his detainee might know of other firearms in the home not yet found. [ 23 ] While I defer to the authorities on questions of safety and security, I am not persuaded that implementation and privacy for what would be a relatively brief period was not safely feasible, given the paramount constitutional importance of this right. If the police felt capable of securing the residence, it is unclear why they could not secure a room for a private call.

In my view, the significant delay here caused by insufficient police resources to transport the arrestees required consideration of a reasonable accommodation in this regard at some point in these circumstances. [ 24 ] At 10:22 p.m., Rene and Natalia were transported to 32 Division, again by D.C. Perelli and D.C. Jaswal, as no transport officers were yet available. On route, D.C. Perelli told Rene of the charges and gave him rights to counsel “off the top of his head”. Rene said he would like to call Alan Gold at the station. They arrived at 10:31 p.m. The First Booking [ 25 ] Mr.

Hamouth was paraded at 10:56 p.m. before Staff Sgt Gurr. He was chatty. He mentioned that he owned a cannabis dispensary. He said he had diabetes but had taken his insulin in the morning and felt he’d be fine. D.C. Jaswal recommended a level-3 search. It was authorized. The Second Call to Counsel

[ 26 ] Once Rene had been paraded, D.C. Perelli called Alan Gold at 11:09 p.m. using the same office number, he says, expecting an answer. There was none. It is unclear why he had that expectation. It was Saturday night. As with the first call, he did not “scroll down” on his phone to search for other ways to attempt to make at least initial contact with counsel of choice.

His was a perfunctory effort. [ 27 ] There were other readily available sources of information that included the Law Society of Ontario (LSO) and Canada Law List, available on Google, a quick exercise had he scrolled down, and in relation to which he would have found two phone numbers and an email address for Mr. Gold. He said he was unable to find the station’s Ontario Legal Directory but didn’t ask anyone. [ 28 ] There is also no evidence he told any of his colleagues he had made two calls to no avail. The delay and the fact there had been no answer twice ought to have been a red flag.

Not to this officer. [ 29 ] Duty counsel was next. In fact, he told Ryan at the time that if there were no answer, he would put him in touch with duty counsel. He didn’t ask if that’s what he wished, nor did he inquire if Ryan had another phone number in his cell phone or the name of a different lawyer. [ 30 ] When D.C. Perelli testified that he “hoped” there would be an answer, I infer he really meant he didn’t expect one. He left to help search another property listed in the search warrant. He did not delegate a colleague to cover his s. 10(

b) obligation, despite the running of the constitutional clock. He dropped the ball. He didn’t return to the station until 12:52 a.m. [ 31 ] D.C. Perelli maintained that a phone call, even here, was the best option, but allowed that in hindsight he might have checked on the office computer for other search results. He said use of email never crossed his mind and, in addition, he does not have email on his phone. He says he never sends emails after-hours, an odd view in today’s world of social media. As well, he uncommonly suggests a text message is like a letter that does not arrive immediately. D.C.

Monish told the court that all TPS officers have email addresses. [ 32 ] At 11:12 p.m., D.C. Monish and P.C. Ho conducted a strip search. The officers became concerned when it appeared the defendant had lost his balance and told them he had trouble breathing. He also asked to lay down to be interviewed and complained about chest pains. Paramedics were called. They arrived at 11:45 p.m. It was decided to take him to the hospital. Trip to the Hospital [ 33 ] D.C. Roman Rogucki transported the defendant to hospital, arriving at 12:17 a.m. There, Mr. Hamouth was treated with medication.

The officer described his conversations with the defendant as engaging. No one had told him that his detainee had not exercised his rights to counsel for some hours or that there had been no real implementation. [ 34 ] It was Mr. Hamouth who said he had not received a call back from his counsel. D.C. Rogucki told him that other officers would arrange that for him or at least contact duty counsel. He told the court his priority was the safety and well-being of his detainee. He did not consider facilitating a private call with counsel.

He felt the hospital could not afford private rooms where he could ensure his and the defendant’s safety. He didn’t ask. [ 35 ] Mr. Hamouth was cleared and discharged at 1:08 a.m. He arrived back at the station at 1:20 a.m. D.C. Rogucki found the defendant chatty both at the hospital and in the cruiser. The cruiser’s video bears this out, highlighting the importance of timely legal advice in such circumstances. The Second Booking [ 36 ] Mr. Hamouth was paraded again at 1:25 a.m.

The booker told him that as he hadn’t yet made a phone call to counsel, he would be going upstairs where he would have access to a phone now that his medical issues were addressed. That was misleading. [ 37 ] Mr. Hamouth told the booker that one of the officers had called a lawyer “you guys use”. The meaning of those words is unclear. The officer suggested the lawyer had probably called since then, permitting the inference of little communication between staff about implementation and of its low priority. D.C. Perelli’s Third Attempt to Call the Same Number [ 38 ] Following his return to the station, D.C.

Perelli was in a debrief until 1:05 a.m., after which he called the same phone number for a third time at 1:09 a.m. He made no note of the number or that it went unanswered, a material omission that appeared to reflect the lack of seriousness he attached to this statutory obligation. [ 39 ] The officer said he had hoped counsel would pick up and that in his view this was still the best route to implement initial contact with counsel.

Remaining hopeful, at least twice, over several hours does not equate in these circumstances with reasonable diligence in facilitating the defendant’s exercise of his right to counsel of choice. It was a waste of time. [ 40 ] D.C. Perelli decided to call duty counsel but then failed to do so for almost 2 hours, offering no explanation for the delay. It was negligent. It aggravated an already significant delay where meaningful implementation of access to counsel of choice was meagre at best. [ 41 ] There is also no evidence this officer discussed a call to duty counsel with Rene. He just made the call.

Nor is there evidence he asked the defendant if he had another number for Mr. Gold or wished an opportunity to call a different lawyer. Mr. Hamouth did not speak to duty counsel until 3:20 a.m. Positions of the Parties [ 42 ] Mr. Gold, for the defendant, submits that the police infringed his client’s s. 10(

b) rights in a number of ways that were systemic in nature. He says the police violated their duty to “hold-off” questioning the accused twice out of ignorance, eliciting inculpatory responses; they were not reasonably diligent in facilitating contact with counsel of choice; they took no reasonable steps to mitigate the

delay; they offered no explanation for the further delay in calling duty counsel; the officer failed to ask if the defendant wished to speak to duty counsel, nor did he provide him the option of calling another lawyer. In sum, police failed in their duty to implement right to counsel of choice. Counsel submits that these infringements warrant exclusion of the evidence under s. 24(2). [ 43 ] Ms. Lindo-Butler, for the prosecution, recognizes that mitigating a detainee’s ‘legal disadvantage’ and ‘legal jeopardy’ is of paramount constitutional importance.

But she says that the significant delay here was case-specific, rather than systemic, justified in the defendant’s residence by safety concerns and later by exigent medical need. She suggests that the police took reasonable steps to minimize the delay in the suspension of rights to counsel and that they were diligent in facilitating those rights. She suggests the violations of the duty to “hold-off” were merely technical, mitigated by the Crown’s decision not to adduce the defendant’s inculpatory utterances. [ 44 ] Ms.

Lindo-Butler submits that the police acted in good faith, there were no serious systemic issues and that exclusion of the evidence would bring the administration of justice into disrepute. Did the Police infringe the Defendant’s s. 10(

b) Rights? [ 45 ] For the reasons that follow, I find that the police breached the defendant’s s. 10(

b) rights to counsel in multiple ways. [ 46 ] Counsel for the accused points out that at the initial briefing, the police did not discuss implementation of rights to counsel, nor did they determine the availability of transport officers once the search warrants were granted. Of course, the police had no obligation to do so. But failure to take account of these issues in this case, while not an infringement, contributed to a delayed, disorganized and ultimately inadequate implementation of rights to counsel. [ 47 ] The Crown suggests the two ‘holding-off’ incidents were only technical breaches. They were not.

They were more. They led to inculpatory responses. They were rooted in ignorance. Whatever the process for continuing education of police officers and clarification of their legal obligations, it was ineffective here. [ 48 ] The defendant would ordinarily have been at the police station during the search of his residence. There, his request to consult counsel would have been met. But he remained at his residence for 2 hours after his arrest because of limited police resources. [ 49 ] Initially, safety warranted a delay in permitting a private call to counsel while the police secured the home.

But it is the responsibility of the police to be mindful of the delay and to review the matter on a continual basis so that the suspension of the right be only for as long as reasonably necessary [4] . There is no evidence this occurred. If the residence could be secured, so could a private room for a phone call. At some point during the two hours, the police ought to have considered whether such accommodation was feasible. That was not done. [ 50 ] Beyond D.C.

Perelli taking sole responsibility for contacting counsel, there is no evidence of discussion amongst the officers of facilitating the defendant’s rights to counsel in a timely manner. That obtained, as well, when D.C. Rogucki was directed to transport Mr. Hamouth to the hospital. There is no evidence anyone spoke to this officer about the delay. He chose not to deal with it. He made no inquiries of hospital staff whether private access to a phone was available. He ought to have.

As Justice Abella pointed out in Taylor , an individual receiving treatment in a hospital is “not in a Charter -free zone”. [5] To this point, in my view, the police had failed to take all reasonable steps to minimize the delay [6] . [ 51 ] I believe the most serious failure involved the implementation itself. D.C. Perelli’s effort in that regard was paltry at best. He took control of facilitating rights to counsel for three defendants while having other duties. There is no evidence he delegated that responsibility to a colleague in his absence.

When there was no answer to the first call, he did not take a brief moment to search further to ensure at least voicemail contact with counsel of choice. [ 52 ] Why he thought he would get a different result the second time is a mystery. It was a token act. He then waited another 2 hours to call the same number when, as counsel points out, there was nothing to wait for. As well, his evidence in cross-examination on the alternative use of emails and text messages makes little sense. He knows better. [ 53 ] I view D.C. Perelli’s evidence on the third call to lack credence.

Hoping for an answer is not a meaningful facilitation. He did not ask his detainees if they had another phone number or name [7] . He made no reasonable effort to find another easily accessible source. I infer, rather, that he had duty counsel in mind. [ 54 ] Even then, without explanation, he waited almost 2 hours while the constitutional clock was running before doing so, aggravated by effectively steering Rene to duty counsel without giving him the choice [8] . He admitted deciding that was the best option for the defendant.

It may be that he thought discovery of the firearms made for an airtight case so that providing a reasonable and timely opportunity for the defendant to exercise his rights to counsel of choice was no longer of a pressing nature. [ 55 ] On this evidence, I cannot conclude that D.C. Perelli exercised reasonable diligence in facilitating contact with counsel of choice [9] , nor did he show real interest in mitigating the delay. Put otherwise, he did not take all steps that were reasonable in the circumstances [10] . I find that Mr. Hamouth’s s. 10(

b) rights were infringed. Should the Firearms and Ammunition be Excluded under Section 24(2)? [ 56 ] In considering the admission of impugned evidence, the court in Grant [11] focusses on the long-term repute of the administration of justice. Trial courts are instructed to assess and balance the effect of admitting the evidence on society’s confidence in the justice system based on a three-pronged test that includes the following factors:

(1) The Seriousness of the Charter Violations [ 57 ] This first inquiry carries the concern that respect for the Charter may be undermined if by admitting the evidence the court

appears to condone deliberate or negligent acts or omissions that fall below the standard of conduct expected of police officers, particularly regarding fundamental rights, such as in this case. [ 58 ] As I indicated earlier, there are multiple breaches here. They include the police not holding-off, not taking timely or reasonable steps to minimize the delay, not being reasonably diligent in implementing rights to counsel of choice, and permitting an unexplained delay prior to contacting duty counsel. The spacing of the calls, and their futility, permit the inference that for D.C.

Perelli implementation was not paramount. [ 59 ] These infringements, in combination, are serious. They left the defendant for too long in legal jeopardy without the ‘lifeline’ referred to in Rover [12] . This line of inquiry favours exclusion.

(2) The Impact of the Charter Violations [ 60 ] The more serious the violation of the defendant’s Charter -protected interests, the greater is the need for the court to disassociate itself from that conduct by excluding the evidence in order to help preserve public confidence in the rule of law. [ 61 ] The elderly, ill and garrulous defendant, inexperienced in detention and uninformed about the search warrant process, needed the advice of counsel within a reasonable time. He made two inculpatory utterances. He kept talking. He spoke to duty counsel almost 7 hours after his arrest. [ 62 ] In Rover , Doherty J.A. explained the importance of the s. 10(

b) lifeline. He said: “The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated” [13] . [ 63 ] The Crown does not seek admission of the utterances. This, in my view, tends to lessen the negative impact of the s. 10(

b) violations. [ 64 ] The larger question is whether the Crown’s concession and the lack of a causal connection between the violations and the discovery of the evidence renders exclusion unnecessary to maintain the long-term repute of the justice system. [ 65 ] In this case, the police relied on a validly issued warrant to lawfully search for and seize the firearms in advance of any breach of Mr. Hamouth’s s. 10(

b) rights. The firearms were discovered prior to the beginning of the implementation deficits. While there is no causal connection, there is, however, a temporal and contextual connection that is not too remote in the sense that the breaches and the discovery of the evidence were close in time and part of the same transaction, in this way meeting the “obtained in a manner” requirement in s. 24(2) [14] . [ 66 ] The violations compromised the defendant’s right to security of the person, in that for too long he was “unable to receive the direction, reassurance and advice that counsel could provide” [15] .

But I am also mindful that in relation to this line of inquiry, the absence of a causal connection between the s. 10(

b) breach and the obtaining of the evidence is a factor that mitigates the impact of the breach on the defendant’s Charter -protected interests and weighs against the exclusion of the evidence [16] . [ 67 ] As a result, I agree with the Crown that on this evidence the impact on the defendant’s Charter -protected interests is moderate at best and in my view weighs only slightly in favour of exclusion.

(3) Society’s Interest in a Trial on the Merits [ 68 ] This inquiry gives emphasis to the truth-seeking function of trials and generally favours admission of the impugned evidence, particularly where the evidence is considered reliable and is critical to the prosecution’s case. In Grant , the court held that the exclusion of reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively ends the prosecution [17] . [ 69 ] The possession of loaded firearms is a serious crime that poses lethal risk to the safety and security of the community.

The evidence here was lawfully seized and is reliable. On this line of inquiry, society’s interest in a trial on the merits is high. [ 70 ] This is a close case on a balancing of these three factors. The inadequate implementation is notable, nor is it to be condoned, but I view it and the delay to be specific to the situation that involved safety considerations, the medical intervention and the negligent delay in contacting duty counsel. The Crown’s concession on the utterances and the lack of a causal connection serves to mitigate the ‘impact’ at the core of the second line of inquiry.

This is not a situation, in my view, in which the strength of the first two inquiries overwhelms the importance of the third inquiry and tips the balance in favour of exclusion [18] . I conclude that the long-term repute of the justice system does not require exclusion for these very serious charges. The firearms and ammunition will be admitted into evidence. Has Possession Been Proved to the Requisite Standard? [ 71 ] Mr. Hamouth was the sole occupant of 199 Norton Ave. when the police knocked on the door in the evening of June 22. There was a smell of marijuana.

Marijuana was discovered by police in tupperware containers and baggies in a drawer below the kitchen stove and elsewhere. The defendant later told the booker at the station that he owned a cannabis dispensary. [ 72 ] As noted earlier, police observed a shotgun in plain view leaning against a wall at arms length from the bed in the master bedroom, in addition to finding a revolver under one of the pillows, both with rounds. In the nightstand beside the bed, police located the defendant’s personal identification. In the walk-in closet, police found Mr.

Hamouth’s passport, a bank draft and bills in various denominations. [ 73 ] The room appeared lived-in. There was clothing on the bed and toiletries on the bathroom countertop. Beside the nightstand was

a bottle of water within arm’s reach of someone lying on the bed. On the other side of the nightstand was a beverage bottle and a wastepaper basket. On top of an ottoman there were drug paraphernalia and marijuana. There were also several plastic bags of marijuana in the walk-in closet. The most reasonable inference is that Rene occupied the room. [ 74 ] Of significance, no other identification or identifying documentation for anyone else was found anywhere else in the house.

In the basement bedroom, where two other ready-to-use firearms were discovered, there were no pillowcases on the pillows and no clothing in or around the area. It was only in one of the upstairs bedrooms that there was some clothing in a closet, and cosmetic bags in the bathroom, suggesting transient use.

In the earlier ruling on the validity of the search warrant, I inferred that the defendant’s son, Ryan, was at least a part-time occupant of the home. [ 75 ] It is for the prosecution to prove by circumstantial inference that Rene had both knowledge and control of the firearms, essential elements of possession [19] . The case at bar is one of constructive possession.

It is established where the accused knows the character of the object, knowingly puts or keeps the object in a place, and intends to have the object in a particular place for his use or benefit or that of another person [20] . [ 76 ] In drawing inferences on possession, it is an accepted matter of common sense in the authorities that a firearm is valuable, difficult to obtain and dangerous and that it is reasonable to infer that it would only be entrusted to someone who knew what they were keeping [21] , important in proof of constructive possession, as in this case. [ 77 ] In order to conclude that Mr.

Hamouth’s guilt is the only reasonable inference that can be drawn from the evidence, the court must be satisfied that the evidence assessed logically, in light of human experience, excludes any reasonable alternative other than guilt. If there is a reasonable inference or conclusion other than guilt, the Crown will not have met its burden of proving the case beyond a reasonable doubt [22] . [ 78 ] Mr. Gold, for the accused, suggests one reasonable alternative is that Mr. Hamouth was a guest in his son’s home and would have no control over the firearms or ammunition.

On this evidence, there is no basis for such an inference beyond pure speculation. [ 79 ] Rather, in my view, the only reasonable inference on the evidence is that Rene was resident in the home on June 21 and 22 and occupied the master bedroom. It is not surprising that the owner of a cannabis dispensary might keep marijuana in his home. I am not left in reasonable doubt on all the evidence that Rene inevitably had knowledge of and a degree of control both over the firearms in open display and the ammunition on all the floors of the residence. [ 80 ] There will be findings of guilt on all counts.

Released: August 24, 2021 Signed: Justice L. Feldman