r v. NAYEF CHOUCAIR, 2021 QCCQ 11962

R. c. Choucair 2021 QCCQ 11962 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU “Criminal Division” No.: 550-01-111094-191 DATE: October 18 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE RICHARD MEREDITH, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutor v.

NAYEF CHOUCAIR Accused-Applicant ______________________________________________________________________ Judgment on the Motion to Exclude Evidence, pursuant to section 24 (2) of the Canadian Charter of Rights and Freedoms ______________________________________________________________________ INTRODUCTION [ 1 ] The Applicant is charged with one count of possession for the purpose of trafficking crack cocaine, contrary to section 5(2)(3)

a) of Controlled Drugs and Substances Act . [ 2 ] At trial he introduced a Notice of Application seeking the exclusion of evidence seized, on March 26 2019, on his person and in a vehicle in which he was an occupant, following an interception by police that led to the discovery of illegal drugs and other items. [ 3 ] The Applicant alleges that police intercepted the vehicle in which he was a passenger for an improper purpose, in order to conduct a fishing expedition in circumstances where there was no reason to intercept the vehicle and no grounds to arrest and search him, which led to the discovery of crack cocaine. [ 4 ] In addition, the Applicant contends that, even if the Court finds the traffic stop was legitimate, his detention became arbitrary when police asked him to identify himself and subjected him to additional questions. [ 5 ] The Applicant alleges multiples breaches of his rights, protected under the Canadian Charter of Rights and Freedoms .

Specifically, police violated his right against arbitrary detention, protected under

section 9, his right, under

section 8, against unreasonable search and seizure, his

section 10(

a) right to be informed of the reasons for his detention and his right to counsel provided under

section 10(b). [ 6 ] Finally, in light of these violations and considering their seriousness, the Applicant seeks the exclusion of all the evidence seized. ANALYSIS 1.

Overview of the evidence [ 7 ] The evidence, presented in the context of the voir-dire, is conflicting as it relates to the testimonies of the two police officers involved versus the evidence of the Applicant and Ahmed Farhat. [ 8 ] According to the Crown's case at 3:21AM Officers Joël Benoit and Pierre-Luc Gagnon-Hamel were patrolling in a marked police vehicle in Gatineau when they noticed a vehicle turn left at the intersection of Garneau and Carillon, streets without signaling his intention to do so. [ 9 ] The police began following the vehicle and observed that the driver was breaking several times in a jerky fashion.

Cst Benoit shortly thereafter turned on his police vehicle flashing lights and the driver, Mr. Ahmed Farhat, pulled over.

[ 10 ] Officer Benoit decided to intercept the vehicle because of the Highway Safety Code violation of failing to signal his intent to turn left and to check on the condition of the driver in light the jerky breaking movements they observed. [ 11 ] Both officers approached the vehicle, Cst Benoit on the driver's side and Gagnon Hamel on the passenger side. Cst Benoit claims the window on the driver's side was all the way down. Using his flashlight, he looked inside, scanning the interior for security purposes. He also informed Mr.

Farhat of the reason for the interception and asked him for his driver's licence and other vehicle documentation and Mr. Farhat provided him with the requested documents. He also noticed the passenger appeared to have a cell phone. [ 12 ] At the same time Cst Gagnon Hamel was on the passenger side, where the window was also completely down. He observed the passenger, who is the Applicant, with a cell phone in his hands. He was silent, looking straight ahead.

Using his flashlight, for officer safety reasons, he also scanned the interior of the vehicle. [ 13 ] At some point, he positioned himself beside the wheel well on the passenger side and looked right through the windshield using his flashlight. That is when, he says, he observed behind the heels of the Applicant a scale which appeared to have residue that he characterises as looking like cocaine. [ 14 ] As he makes this discovery, his colleague Cst Benoit is informed. Cst Benoit then orders Mr.

Farhat out of the vehicle and proceeds to his arrest for simple possession of drugs and informs him of his constitutional rights. [ 15 ] Upon making this discovery, Cst Gagnon Hamel also orders the Applicant out of the vehicle. The Applicant exits the vehicle, leaving his phone on the passenger seat. The officer then proceeds to his arrest for simple possession of drugs and informs him of his rights, including right to silence and right to counsel. He did this verbally and does not recall if it was done in French or in English but does recall that the Applicant responded that he understood.

The officer did not at this point ask him if he in fact wanted to speak to a lawyer. He also proceeded to handcuff him. [ 16 ] Cst Gagnon Hamel then conducted a search incident to the arrest of the Applicant. He seized 1820.00 dollars cash on his person. In the course of the search, Cst Gagnon Hamel felt something like an abnormal ball in the groin area. [ 17 ] At this point Mr.

Farhat had already been placed in a police vehicle and Cst Benoit had joined Cst Gagnon Hamel near the applicant. [ 18 ] Cst Gagnon Hamel testified that in order to avoid an intrusive search inside the Applicant's pants and underwear, near the groin area, he asked him if he would retrieve the object and hand it to him. The Applicant complied and a hand cuff was removed on one hand and he in fact retrieved the object and gave it to Cst Gagnon Hamel. [ 19 ] The object in question was a plastic bag wrapped around a number of smaller quantities of crack cocaine.

In total there was approximately 50 grams of crack cocaine. [ 20 ] Following this discovery Cst Gagnon Hamel proceeded to arrest him once again, this time for possession for the purposes of trafficking, informing him of his rights to counsel and silence. Again, he did not ask him if he wished to contact a lawyer, nor was he provided with an opportunity to contact a lawyer at the site of arrest. [ 21 ] Cst Gagnon Hamel indicated he believes he had his personal cell phone on him but is unsure. As for the Applicant's cell phone it was subsequently seized as part of the investigation.

The officer also pointed out he did not have access to a cell phone issued by the police force. [ 22 ] Cst Gagnon Hamel deemed that, in light of the circumstances, providing him an opportunity to communicate with a lawyer in a confidential manner would only have been feasible at the police station, which was 4 minutes away. [ 23 ] He then placed the Applicant in the police vehicle and proceeded to identify him. The Applicant had no identification on him. The officer asked him for his date of birth and his name, and the Applicant provided those details.

Cst Gagnon Hamel was able to confirm his identity by observing tattoos and comparing his observations to information provided in the police database. [ 24 ] The Applicant was then transported to the police station and he was able to speak to a lawyer. He was released by police several hours later. [ 25 ] The Applicant submits that the observations that both police officers say they made are untrue. The Applicant and Mr. Farhat claim that Mr.

Farhat was driving carefully and did not commit any Highway Safety Code offence nor did he use his brakes in the jerky fashion described by police. [ 26 ] According to the Applicant, police had no grounds or justification whatsoever to intercept them but rather that they fabricated their version as a pretext to conduct a fishing expedition. [ 27 ] He claims that he and his friend decided to depart from the AirBnB rental unit they had rented earlier that same day, which was just a few minutes away from where they were pulled over, in order to drive to Orleans to bring back his girlfriend's laptop that she had forgotten in the rental unit when she left earlier that evening. [ 28 ] Mr.

Farhat agreed to stop somewhere in Ottawa so the Applicant could drop something off before heading to Orleans. The Applicant was to deliver drugs he had in his possession and the scale to a drug addict with whom he had made arrangements. [ 29 ] According to him, Mr. Farhat was totally unaware that he had drugs and the scale on him and that he planned to complete a drug delivery that night when they would have made a stop in downtown Ottawa on their way to Orleans. This was also confirmed by Mr. Farhat.

[ 30 ] The Applicant added that before leaving the rental unit, he stepped outside before Mr. Farhat in order to start the vehicle because it was cold. It is at that moment that he tucked the scale deep in between the passenger seat and the centre console that he had until then kept in his coat pocket. Before leaving the unit he also stashed the drugs in his boxers near his groin. [ 31 ] He testified that at no time did he have the scale behind his heals, as indicated by Cst Gagnon Hamel.

Rather, when they were pulled over, for no reason, Cst Gagnon Hamel came to his side of the car while Cst Benoit went to the driver's side. [ 32 ] Mr. Farhat says he immediately asked why they were pulled over, to which Cst Benoit did not respond. He says that at first he spoke in English but asked him again in French in case he did not understand English. Still he got no response. [ 33 ] The Applicant says he was not holding his cell phone but rather it was in a cup holder in the centre console. He says he lowered his window about 12 inches and that Mr. Farhat lowered his window all the way.

Cst Gagnon Hamel asked him for his name and he complied. [ 34 ] Officers' Gagnon Hamel and Benoit would have immediately started scanning the inside of the vehicle with their flashlights. According to the Applicant, Cst Benoit asked Mr. Farhat for his driver's licence and other related documents and that Mr. Farhat did provide his documents. [ 35 ] Mr.

Farhat says he recalls that the officers were having some exchanges but it sounded kind of mumbled but he did at some point hear one officer say to the other something like "Cherche c'est lui". [ 36 ] At some point, using his flashlight, Cst Gagnon Hamel looked through the vehicle's windshield to look inside the vehicle. It was shortly after that the officer opened the door and ordered the Applicant out of the vehicle and immediately proceeded to his arrest without giving him any reason for his arrest, nor did he inform him of his constitutional rights. Cst Gagnon Hamel then immediately proceeded to search him.

The Applicant confirms that the officer did feel the object he had placed in his boxers near his groin area. During this encounter he would have said something like "why do you keep harassing me" and Cst Gagnon Hamel responded something like "because you're a criminal". [ 37 ] Once the officer discovered an object in his groin area, he apparently said something like "you're fucked". He also said to him "we can either do this the hard way or the easy way".

The Applicant knew he was referring to the retrieval of the object in his boxers so he complied and retrieved the drugs himself after one of his hands was uncuffed and handed the drugs to Cst Gagnon Hamel. He claims that Cst Gagnon Hamel was also mocking his name during this interaction. [ 38 ] The Applicant insists it is only once he was in the police car that Cst Gagnon Hamel did inform him that he was under arrest for possession for the purpose of trafficking and that he was duly informed of his rights including his right to counsel.

He confirmed that he was able to contact a lawyer after arriving at the police station. 2. The issues [ 39 ] In order to determine whether to grant the Application, the Court must first address issues related to the credibility of witnesses. As for the burden of proof, the Applicant bares the onus of establishing the Charter violations alleged in his Application, except as it relates to the

Section 8 breach. [ 40 ] With regards to

section 8, since we are dealing with a search without a warrant, it is presumed to be invalid and the Crown bears the burden of establishing on a balance of probabilities that the search did not in fact violate his

section 8 right. [ 41 ] The Court's findings regarding the alleged breaches will depend in great part on its findings of credibility. At the end of the day, the Court must be satisfied, first of all, that the Applicant has established on a balance of probabilities that the police violated his rights, or some of them, under sections 9 , 10(

a) and 10(

b) of the Charter and that the Crown has not met its own burden regarding the

section 8 violation. [ 42 ] Secondly, if the Court is satisfied that the Applicant's rights were violated, then it must determine whether the exclusion of the evidence is warranted, pursuant to section 24(2) . In addressing this issue the Court must apply the 3 tier approach set out in the Supreme Court decision of R. v. Grant [1] .

a) The credibility of witnesses [ 43 ] The Applicant argues that the officers' versions of events are complete fabrications and that they colluded in the preparation of their police reports in order to remain consistent in the presentation of their evidence. [ 44 ] He submits that there was no justification or grounds to pull them over nor to arrest him and conduct the search that led to the discovery of the drugs. [ 45 ] The Applicant and Mr. Farhat corroborate each other in terms of what they say on a number of issues.

They both say that the Applicant's girlfriend had forgotten her laptop in the rental unit and that the Applicant grabbed it when he left to go to the vehicle and that he stepped out of the rental unit before Mr. Farhat to start the vehicle. [ 46 ] They both say the Applicant asked Mr. Farhat to drive to Orleans to deliver the applicant's girlfriend laptop and that he also wanted to make a stop in Ottawa to drop something off, to which Mr. Farhat agreed to do. [ 47 ] They both say that Mr.

Farhat did not violate the Highway Safety Code and that once they were pulled over the officers would not respond to their questions when asked why they were being pulled over. [ 48 ] They also corroborate each other in that they both say that Cst Gagnon Hamel asked the Applicant for his name and shortly

after conducting a visual inspection of the inside of the vehicle with his flashlight, the officer ordered the Applicant out of the vehicle and searched him. [ 49 ] They also both say that Mr.

Farhat was totally unaware that the Applicant had drugs on him and a scale and that he was planning on making a drug delivery during their ride to bring back the Applicant's girlfriend's laptop. [ 50 ] That being said, there were a significant number of contradictions and statements that the Court considers as exaggerations or that have no air of reality. [ 51 ] While they both say the laptop was in the Air BnB unit, in his sworn affidavit the Applicant says, after his girlfriend left, he realized that she had forgotten her laptop in the car. This begs the question as to how her laptop ended up in Mr.

Farhat's car since his girlfriend did not arrive at the rental unit with him. Then why would he provide such a sworn statement? [ 52 ] On this same issue, the Applicant testified that his girlfriend ended up calling him to tell him she forgot her laptop and asked him if he and Mr. Farhat would bring it back to her. In his affidavit, as mentioned, the Applicant says he realized he still had her laptop in the car and a couple of hours later he decided to drop it off to her.

In cross-examination, he says she texted him at around 1:00am. [ 53 ] Furthermore, while the Applicant testifies that she forgot her laptop and some papers in the rental unit, Mr. Farhat says she forgot her laptop and some textbooks. [ 54 ] Also, prior to leaving the rental unit, the Applicant, who did not want his friend to know about the drugs and the scale, says he tucked the scale deep in between the front passenger seat and the centre console. Both claim Mr. Farhat was not aware that the Applicant had drugs and a scale. [ 55 ] The Court does not believe this. If Mr.

Farhat agreed to make an additional stop so the Applicant could drop something off downtown but does not suspect it has anything to do with drugs, it defies common sense that the Applicant would have put the scale in that location because it means that, had they made it to the location where the Applicant was to deliver the drugs and the scale, he necessarily would have had to pull the scale from where it was right in front of his friend, from whom he had hidden the fact that he had drugs and a scale on him all day. [ 56 ] A further contradiction relates to the moment when the stop to deliver something downtown was to occur.

Mr. Farhat said that they were to go to Orleans first and then make the other stop on the way back whereas the Applicant says the opposite. [ 57 ] Regarding the facts leading up to the interception, in order to reinforce the scenario that Mr. Farhat did not commit any Highway Safety Code offence, the Applicant, as did Mr. Farhat for that matter, emphasized just how careful a driver he is. Considering the history they provided on the frequency of the times they spent together leading up to that day of March 26th, the Court finds overblown that the Applicant would even know that Mr.

Farhat was this incredibly careful driver. [ 58 ] They both said the same thing and it rang as an exaggerated attempt to reinforce the fact that Mr. Farhat was such an exceedingly careful driver that he could not even have simply forgotten to put his blinker on at 3:30 in the morning when there were no other vehicles on the road. [ 59 ] The Court also finds unbelievable Mr. Farhat's assertion that he at no time knew his friend had drugs on him and was planning to make a drug delivery.

He attempted to give the impression that it was no big deal for him to make the additional stop in Ottawa, that he did not even give it a second thought and that he had no issue with his friend wanting to make an additional stop to "drop something off", at a time that would have been close to 4AM. [ 60 ] While the Court cannot be sure whether Mr. Farhat knew from the beginning that the Applicant had drugs on him, I unequivocally don't believe that he was unaware of what the Applicant was planning to drop off downtown in the wee hours of the morning.

It defies common sense and the Court does not believe that he would be so naïve and would not even have at least asked some questions, which he did not do according to him. [ 61 ] Regarding the interception, Mr. Farhat testified that he lowered his window about halfway, whereas the Applicant says that Farhat lowered his window all the way. [ 62 ] It was also very evident that both exaggerated the atmosphere they say they were confronted to in their dealings with the two officers. Mr.

Farhat talked how things were getting intense and how surprised he was to see two officers approaching his vehicle once he pulled over and that it was suspicious. The Applicant talked about how things were getting heated. [ 63 ] In examination in chief Mr. Farhat's description of Cst Benoit's actions suggested the officer was reaching inside the vehicle to turn off the ignition and undo his seat belt.

In cross-examination he scales those actions back to the officer perhaps reaching in the vehicle with one hand and that the ignition was already turned off. [ 64 ] The same type of aggressive behaviour from the police is emphasized by Mr. Farhat when he describes what he observed when the police officers were dealing with the Applicant outside the vehicle and appeared to be searching him. While he says he could not hear what was being said because the hood of his jacket was tightly over his head, he adds he could hear them yelling.

In cross-examination he scales back that description and says they were not really yelling but were being aggressive. [ 65 ] This particular sequence also defies common sense from another perspective. He claims that just prior to observing both officers dealing with the Applicant, Cst Benoit just left him there handcuffed outside without any supervision whatsoever for 20 to 25 minutes. He then claims that once the additional police vehicle arrived, he was placed in the back of the patrol car by another officer, where he continued to observe the two officers dealing with the Applicant outside.

It defies common sense that this part of the police intervention could have lasted that long.

[ 66 ] Furthermore, as he attempts to suggest a hostile atmosphere in the manner that the police were dealing with the situation, it is a curious contrast that when Mr. Farhat asked Cst Benoit to zip up his jacket because it was cold this same officer did so immediately. This clashes with the aggressive, oppressive approach from this officer who was allegedly so unconcerned about their rights. [ 67 ] The Applicant says at no time did he put the scale behind his heels. Regarding this sequence, in his affidavit, Mr.

Farhat says that he had a hard time believing that the officer could have seen the scale looking through the front windshield. In this part of his description of the events he plainly says "The officer at the passenger side of the vehicle then moved towards the front and shone his flashlight through the windshield. The officer claimed that he could see a scale and he told Nayef to get out of the car". This description appears clearly to provide a narrative of what he saw and heard at the moment.

It just so happens that it also confirms what Cst Gagnon Hamel says he saw and did, which was the basis for the Applicant's initial arrest for simple possession. [ 68 ] Yet, at trial, Mr. Farhat attempted to twist the meaning of that statement in his affidavit, as not meaning that is what he observed but rather that the Applicant told him that the officer said this to him a couple of weeks after their arrest when they spoke for the first time. [ 69 ] At trial he instead says he had no idea why they were asked to step out of the vehicle and that he did not hear anything about a scale at the time.

This too defies common sense. It is very clear from his affidavit Mr. Farhat is describing what he saw and heard at that moment. This creative but unbelievable suggestion during his testimony makes no sense, has no air of reality and the Court does not believe him. [ 70 ] The Applicant himself does not even say this at any point in his affidavit or during his testimony. Where would the Applicant have heard this if indeed, in line with defence's theory that the police officers' evidence is a complete fabrication, if this was the case? [ 71 ] This part also lays out a further contradiction. At trial, Mr.

Farhat testified that he and the Applicant spoke together for the first time about two weeks after the day of their arrest. The Applicant said it was the following day. [ 72 ] A further glaring contradiction has to do with the language he suggests that Cst Benoit was speaking to him during their initial interaction. In his affidavit he says that once the officer was on his side of the vehicle he kept asking him why he was being pulled over but the officer would not answer. Thinking that the officer's English might not be good he then speaks to him in French and still gets no response.

The officer kept asking for his identification. At trial, in examination in chief, his description is essentially the same. [ 73 ] Yet in cross-examination, at page 71 of the May 7th transcript, he clearly states that when the officer first spoke to him, it was in English. [ 74 ] Another contradiction concerns where he says, in cross-examination, that he refused to identify himself at first. His description suggests he did not provide his documentation when requested by the officer. The Applicant says the opposite, i.e. that when the officer asked him for his documentation, Mr.

Farhat gave the officer his documentation. [ 75 ] In addition to these contradictions, a close examination of the Applicant's evidence leads also to a resounding impeachment of his credibility. [ 76 ] During his evidence at trial the Applicant describes that when he was searched, at some point, Cst Gagnon Hamel said to him, about the discovery of the object in his boxers, "we can do this the hard or the easy way". There is no mention of those words from the officer in his affidavit.

Rather, in his affidavit, his description even suggests that when he saw the officer put on a glove, on his own, he reached inside his pants to retrieve the drugs and gave it the officer to make him stop. This is quite different than what he said at trial on this issue. [ 77 ] In his affidavit, the Applicant describes events in a manner that suggests that, before Cst Gagnon Hamel found the drugs during the search, he said to him "people like you are criminals". At trial, during examination in chief, the Applicant adds a whole bunch of details not in his affidavit about the comments made by Officer Gagnon Hamel.

For example, he says that as the officer is searching him and felt the drugs in his groin area he said things like "Hand this shit", "Oh you're fucked", "we can do this the hard way or the easy way" and "you're a criminal" as opposed to "people like you are criminals". He did not seem to really know what he recalled, acknowledging instead at some point in cross-examination that Cst Gagnon Hamel said "people like you are criminals" after discovering the drugs. [ 78 ] In addition, in cross-examination, the Applicant initially said that only Cst Gagnon Hamel was mocking his name.

In his affidavit his description suggests both officers were making fun of his name in a mocking tone to each other. [ 79 ] Regarding the person for whom the drugs were apparently destined for, the Applicant testified that they were for an addict. His whole description surrounding the transaction and how much he would be paid, when he would be paid and when the arrangement for the delivery that night was made is unbelievable and defies common sense. [ 80 ] He also said that he bought the scale a couple of days earlier for the person he was going to deliver the drugs to.

According to the photograph filed in evidence the scale clearly appears to have been used, based on the powdery residue that is visible. When asked in cross-examination "You just bought the scale and you don't consume drugs, correct?" the Applicant confirms that is so. Then he is asked "so you didn't use the scale?", to which he responds "I am not going to say I did not use the scale, because why would I have the scale".

Then he attempts to twist what he meant in some nonsensical, unbelievable manner, then says he did not use the scale, which implicitly suggests that it must be the officers who contaminated the scale. [ 81 ] After considering both Mr. Farhat's and the Applicant's evidence in the context of the totality of the evidence, it is without hesitation that I reject their evidence.

Their credibility is so severely impugned, in light of the number of significant contradictions, exaggerations and statements that have no air of reality, that the Court does not believe them. [ 82 ] As for the police officers' evidence, defence counsel cross-examined both men at length. In the course of cross-examination, an exercise in comparison was conducted, in particular during Cst Benoit's testimony. It became quite evident that the wording and even the

punctuation of a number of paragraphs and sentences in his report and Cst Gagnon Hamel's report were very similar and in some respects identical. [ 83 ] Cst Benoit insisted that he did not collude with his colleague to write his report nor did he refer to his colleague's report to write his own. [ 84 ] There were parts of his report that were different or simply did not address certain issues, particularly with regards to parts that did not involve Cst Hamel Gagnon. [ 85 ] However, it was unequivocal that, regarding parts of events that both officers witnessed or may have witnessed, the content was very similar and in some respects identical. [ 86 ] Cst Benoit explained those similarities due to the fact that he and Cst Gagnon Hamel had been partners for 6 years and had acquired similar approaches to writing police reports in terms of wording and style of writing. [ 87 ] After considering Cst Benoit's evidence, the Court without hesitation does not believe him in this regard.

There is no question that there appears to have been a cut and paste or copying exercise regarding those parts of the report that are almost identical.

Some adjustments may have been made to situate the writer in the first person but the content in question is so strikingly similar in wording, in punctuation and use of brackets that this cannot be the product of two police officers having acquired similar work or writing styles. [ 88 ] During Cst Gagnon Hamel's evidence we learned that he actually started writing his report a short time after the events, i.e. at 5:40 AM the same day, and prior to when Cst Benoit began writing his report (which was at 6:31 AM).

He stated that at no time did he share his report with Cst Benoit nor did they consult each other when he wrote his report and nor did he consult Cst Benoit's report at any time. [ 89 ] Cst Gagnon Hamel explained that other officers can have access to his reports once it has been completed and approved or entered in the system. Prior to that, other officers cannot access his report but once it is completed then any officer, including Cst Benoit, can access his report. [ 90 ] The evidence shows that Cst Benoit started writing his report some time after his colleague.

Cst Gagnon Hamel was adamant that he did not confer with his colleague nor share his report with him and vice versa. He was questioned at length by defense counsel as to why their reports were so similar. [ 91 ] He was not however confronted in the same manner with the actual content of the reports as had been the case with Cst Benoit. He also suggested the fact they had been working together for so long, they had developed similar writing habits, which might explain similarities.

He explained that while he would not consult his partner's report in the context of an ongoing prosecution, he has in the past on a number of occasions reviewed his partner's reports in other completed cases or for other types of reports they are required to write that do not involve criminal prosecutions. [ 92 ] When asked to provide concrete examples of matters or circumstances where he had consulted reports of his colleague to support the similarly in writing style, he was unable to provide any examples on the spur of the moment. [ 93 ] After considering Cst Gagnon Hamel's evidence in relation to the totality of the evidence, the Court considers his testimony much more credible on this issue than Cst Benoit's.

Cst Gagnon Hamel appeared sincere in his efforts to explain why they would have a similar writing styles. He was not confronted directly to the actual texts of his colleague's content versus his own, as was the case with Cst Benoit. [ 94 ] He was also very adamant that he did not share his report, nor confer with his colleague. He came across as sincere and truthful in his evidence. The Court considered his inability to provide any concrete examples as sought by defense counsel.

The Court is unconvinced that it is unusual that he would be unable to provide such examples in the face of spur of the moment questioning on this issue. [ 95 ] The Court is inclined to believe him. I don't believe either that the officers colluded together as part of a scheme to make their versions consistent in the context of a complete fabrication of their versions of events. [ 96 ] The Court is unsure why Cst Benoit responded the way he did.

Evidently he seemed to be aware that, as a matter of ethics and proper police work, ideally police officers in general must generate their own notes and reports to ensure they reflect what they observed and recalled. [ 97 ] The Court finds that Cst Benoit conducted a cut and paste exercise of portions of Cst Gagnon Hamel's report and when defense counsel confronted him with the similarities he simply may not have wanted to acknowledge that he did so.

While it is clear that Cst Benoit was not truthful in this regard, after considering the totality of the evidence, the Court does believe Cst Gagnon Hamel and does not believe they colluded to support a fabricated version of events. [ 98 ] In respect to the officers' testimonies on the events of March 26th, there were indeed similarities. Their evidence is consistent on various aspects. Should that be surprising? They were both in same vehicle that night. They both say they observed the car driven by Mr.

Farhat make a left run without signalling his intent to do so. [ 99 ] That being said, although the evidence of both officers tends to corroborate each other's evidence, particularly on the events leading up to the interception of the vehicle and the interactions of both officers during the search of the Applicant, the Court did conclude that it does not believe Cst Benoit's claim that he wrote his report on his own.

Having made that determination, and knowing that he reread his report in preparation for his testimony at trial, what weight, if any, can the Court give his evidence? [ 100 ] This raises the concern highlighted by defense counsel in his written arguments, where reference is made to Justice Mallory's

comments on this issue in R v Green [2] : An officer's notes perform a valuable function at trial. It is usually many months, sometimes years, from the time of an occurrence to the time that the officer is called upon to testify at trial. Without the assistance of notes to refresh his or her memory, the evidence of the officer at trial would inevitably be sketchy at best.

If the officer's notes are prepared without any indication of which is the officer's independent recollection and which is somebody else's recollection, there is every likelihood that that officer at trial will be "refreshing" his or her own memory with the observations made by someone else.

In effect, the officer will be giving hearsay evidence as if it was his or her own recollection rather than the observations of somebody else into the notes without attribution. [ 101 ] This concern certainly exists here to an extent, insofar as the Court is unable to determine what Cst Benoit's own independent recollection would have been since he prepared to testify reviewing parts of a report that was generated by Cst Gagnon Hamel. [ 102 ] Regarding Cst Gagnon Hamel, the suggestion that he did not have notes and that this impacts the weight to be given to his evidence, given concerns it might raise regarding his own recollection, does not raise to the same level of concern the Court has with Cst Benoit.

Following the search and discovery of drugs on the Applicant and the search of the vehicle, they left the scene at 3:55 and arrived at the police station at 3:59. [ 103 ] Once at the police station the Applicant was able to contact a lawyer at 4:09. At the police station Officer Gagnon Hamel also took photographs of the items seized and ensured these were then stored. [ 104 ] Although it is ideal for police officers to make contemporaneous handwritten notes, this was not done in this case.

However, Cst Gagnon Hamel began writing his police report within a 1 ½ hour after completing his involvement with the Applicant and storage of the seized items.

The Court is satisfied, based on Cst Gagnon Hamel's evidence, that his report, made shortly after his involvement in this case, reflects accurately his recollection, from which he refreshed his memory prior to testifying. [ 105 ] As for Cst Benoit, considering the concern about what formed the basis of his own recollection and the fact that I concluded he lied under oath about how he generated his own police report, I cannot give any weight to his evidence in particular. [ 106 ] Focusing on Cst Gagnon Hamel's evidence, defense counsel confronted him with the position of the police vehicle when the left turn was made, suggesting that it was impossible for either officer to see the left side blinker from where they were.

Defence's written arguments even refers to a

part in Cst Gagnon Hamel's evidence where he states that he could see the entire left side of Mr. Farhat's car, which would be impossible, to further impeach his credibility. [ 107 ] With all due respect, it was very evident that Cst Gagnon Hamel made a simple inadvertent mistake when he testified that he could see the entire left side of the vehicle.

When the question was put to him again for clarification he indeed realized he made a mistake and clarified that he meant he could see the right side of the vehicle. [ 108 ] Based on Cst Gagnon Hamel's evidence, in the context of the totality of the evidence on this question, the Court finds it was not impossible for them to observe whether the vehicle had signalled a left turn. It was in the early hours of the morning. Lights on cars, including blinkers, are even more apparent than during day light hours.

Furthermore, blinkers on vehicles are not positioned completely on the side of the vehicle as they do to some degree wrap around toward the front of the vehicle at its extremities. [ 109 ] Cst Gagnon Hamel testified they were in a position to observe that the blinker on the left side was not signaling when the vehicle turned left. Again, after considering his evidence on this issue, the Court believes that this is what he saw. [ 110 ] The Court makes the same finding regarding Cst Gagnon Hamel's evidence on the issue of the jerky braking motions he says he observed.

The Court did not get a sense that he was exaggerating. When asked about whether he observed any other problems in the manner that the vehicle made its stops at intersections or whether there was any concern about the manner the Mr.

Farhat pulled over, he plainly said that there was no problem. [ 111 ] Regarding his interactions with the Applicant once the vehicle was pulled over, there too Cst Gagnon Hamel's evidence was consistent, although there were areas that he acknowledged he could not remember certain things. [ 112 ] The manner that Cst Gagnon Hamel described how he came to discover the scale behind the Applicant's heels does not suggest a scenario that is unbelievable or impossible.

It would seem to be rather unusual or farfetched that had there in fact been no scale in the location where he says he saw it, that he would say such a thing and it would turn out to simply be a lucky guess because there was in fact a scale in the vehicle. [ 113 ] Regarding the interactions of the officers with the Applicant, while the Applicant and Mr.

Farhat attempted to describe an aggressive or somewhat hostile approach by the officers that suggests a complete lack of respect towards them, nothing in his description of how Cst Gagnon Hamel conducted the actual search suggested he did not do so with care or that he was rough with him or that he was manhandled in any way. [ 114 ] The description provided by Cst Gagnon Hamel appeared sincere and consistent. It did not seem as though he was trying to cover every base.

There were certain things he could not remember and he would say so. [ 115 ] It would also seem unusual and defy common sense that Cst Gagnon Hamel would, based on the Applicant's evidence, be so disrespectful in his approach and ignore the Applicant's rights in the most egregious manner and mock him in the manner suggested and then, all of a sudden, once in the police car he would become this compliant respectful officer now ready to abide by his constitutional duties as it relates to informing the Applicant of his rights. [ 116 ] After considering the totality of the evidence the Court is satisfied on a balance of probabilities, and beyond, that that the events of March 26 regarding the reason for pulling over the vehicle and the interactions with the Applicant unfolded in the manner described by Officer Gagnon Hamel.

b) The alleged Charter violations [ 117 ] In light of these findings of fact, the Court is convinced that the vehicle driven by Mr. Farhat was intercepted because he was observed committing the Highway Safety Code offence of not signaling his left turn and was observed making the jerky braking motions that were described at trial. Hence, there was a legal basis to stop the vehicle and to verify the condition of the driver in these circumstances. [ 118 ] Accordingly, the Court finds that the Applicant's right against arbitrary detention, protected under

section 9 of the Charter , was not violated. The events that immediately followed were of short duration up until Cst Gagnon Hamel observed the scale with apparent drug residue. From that point onward the officer was warranted to arrest the Applicant and did not delay things unduly and immediately proceeded to his arrest. [ 119 ] The Court finds that the stop and ensuing detention was not conducted for an improper purpose.

The Court is convinced that the Applicant was arrested for simple possession of drugs following the observation of the scale with apparent drug residue made by Cst Gagnon Hamel and that he was informed of this as the grounds for his arrest and of his right to counsel, to the extent explained by Cst Gagnon Hamel. [ 120 ] In order for the Applicant's arrest without a warrant to be valid it requires that the officer have reasonable and probable grounds to believe, in these circumstances, that the Applicant had committed a criminal offence. [ 121 ] It is well settled law that in addition to the officer's subjective belief that there are reasonable and probable grounds to arrest, the grounds must be objectively justifiable.

In short, this means a reasonable person placed in the position of the police officer must be able to conclude that there were indeed reasonable and probable grounds do the arrest. [3] [ 122 ] Based on the factual findings of the Court, there is no question that, based on the observations made by Cst Gagnon Hamel, he subjectively believed that the accused had committed the criminal offence of possessing drugs.

Furthermore, considering the objective standard that must also apply, the Court is convinced a reasonable person placed in the position of Officer Gagnon Hamel, would deem that he had reasonable and probable grounds to arrest the Applicant. [ 123 ] Furthermore, the Court concludes that the Applicant was informed of the reason for his arrest. Accordingly I am satisfied that the Applicant's right, under

section 10(

a) of the Charter , was also not violated. [ 124 ] The Court is further satisfied that, in the context of this legal arrest, Cst Gagnon Hamel was authorized to conduct a search incident to arrest of the Applicant. Hence, the Court considers that the search of the Applicant in these circumstances was authorized by common law. [ 125 ] The Court now turns to the issue of whether the Applicant's

section 10b) right to counsel was violated, in addition to addressing whether, in the particular circumstances of this case, the manner in which the search was conducted, while authorized by law, can be deemed unreasonable. [ 126 ] The Court must consider that the nature of the search was essentially a frisk search conducted over the Applicant's clothing.

The Court finds that evidence shows that the officer was not abusive in the manner he proceeded in that regard and that it was of short duration. [ 127 ] Furthermore, the officer was concerned about the prospect of having to conduct a more intrusive search once he discovered an object was hidden in the Applicant boxers near the groin area.

This is when he suggested to the Applicant that he willingly hand over whatever was inside his pants near his groin. [ 128 ] Based on submissions made at trial, in light of the alleged violation of the Applicant's right to counsel, related to the implementation component of this right, and in light of the fact the officer asked the Applicant whether he would hand over the object and he did, this raises the question of whether evidence was elicited from the accused before he was able to exercise his right to counsel. [ 129 ] Under

section 10(

b) of the Charter police are required to inform a detained or arrested person of the right to communicate with counsel without delay. In addition, they must also ensure the person understands their right and must ensure it is effectively implemented.

Unless the detained person expressly waives their right to instruct counsel, police are obligated to refrain from eliciting evidence from the detainee until he has had an opportunity to exercise their right to counsel. [ 130 ] In circumstances where a search incident to arrest was justified, as in this case, the general rule is that police are not required to wait until the detained person has had an opportunity to speak to counsel before they can conduct the search. [ 131 ] Here, Cst Gagnon Hamel was justified in conducting this search.

Is the fact that the officer asked the Applicant to willingly hand over the object he had in his pants, which elicited a response from the accused in that he in fact retrieved the object himself and hence handed over incriminating evidence, does that conduct amount to a violation of the Applicant's

section 10(

b) right? [ 132 ] In recent months the Québec Court of Appeal has rendered various decisions that has addressed the issue of whether police are required to permit access to counsel at locations of arrest through the use of a cell phone. [ 133 ] In R v Tremblay [4] , the Court of Appeal addressed this issue of whether the possibility for a detained person to use a cell phone is relevant to the evaluation of whether the detained person was given the right to contact counsel without delay. [ 134 ] The particular circumstances of that case had to do with an arrest for impaired driving.

Following Tremblay's arrest, after being informed of her right to counsel upon arrest, she communicated to police she wished to contact a lawyer and to do so with her cell phone. The opportunity to do so was denied by the police officers at the location of arrest. [5]

[ 135 ] At par. 41, the Court states that the essence of the issue at stake was not whether to decide if the advent of cellular phones modified the right to counsel and permitted its use but rather related to what factors police officers must consider to decide if they will authorize or not the use of a cell phone to contact counsel. At par 50, the Court adds that the presence of a cell phone does not force police to allow its use. It is however a circumstance that police must take into account. [ 136 ] This ruling was rendered in an impaired driving case.

In the present circumstances police officers were dealing initially with a drug possession which quickly became a possession for the purpose of trafficking arrest. The Applicant's cell phone was seized as part of the investigation. [ 137 ] The circumstances of this case are different than those in Tremblay. There are more concerns for police regarding the prospect of permitting access to their own cell phone by someone arrested for possession for the purpose of trafficking than there would be generally in an impaired driving matter.

The latter does not readily raise concerns about who the arrested person may in fact contact or whether data in the phone might be deleted. [ 138 ] That being said, in R v.

Lussier Speck [6] , which did concern a possession for the purpose of trafficking case, Court of Québec Judge Richard Marleau deemed that in the circumstances of that case, police should have considered permitting the accused to use his cell phone at the location of his arrest. [ 139 ] That being said, in the particular circumstances of the case at bar, Cst Gagnon Hamel did not consider permitting use of a cell to allow the Applicant to contact a lawyer at the site of arrest.

He did not, on March 26 2019, have the benefit of knowledge of the decisions of the Quebec Court of Appeal on this issue. [ 140 ] Specifically, in this case, Cst Gagnon Hamel informed the Applicant of his right to counsel and asked him if he understood. Based on the response, the officer had reason to believe the applicant understood his right and he did not request to speak to a lawyer at that time. [ 141 ] Following the second arrest for possession for the purpose of trafficking, he advised him again of his rights and his right counsel.

Cst Gagnon Hamel indicated that on this occasion the accused had no reaction when he informed him of his right to counsel. Cst Gagnon Hamel also knew they were only 4 minutes away from the police station. [ 142 ] He deemed that the circumstances did not permit use by the Applicant of his own cell phone as it had been seized as evidence in the investigation. Once they did arrive at the police station the Applicant was able to contact a lawyer. [ 143 ] Cst Gagnon Hamel also indicated that he did not remember whether he asked the Applicant at the site of arrest if he wanted to a contact a lawyer.

From his perspective, he understood that he had the responsibility of facilitating the accused right to contact counsel and considered that in those circumstances that was done at the first reasonable opportunity. [ 144 ] He indicated that he did everything he could to reduce delays, including asking another officer to take care of towing the vehicle. In cross-examination, he also revealed that in fact he had in the past, on several occasions, permitted detained persons to contact a lawyer at the site of police interventions. He added that he did not consider whether he could use Mr.

Farhat's cell phone on site, explaining that at that time he was not even aware if Farhat even had a cell phone. [ 145 ] He further stated in the end he was not sure if he had his own cell phone on him at the time nor if his colleague did and he did not ask him. [ 146 ] Following the decisions in Tremblay and Lussier-Speck (this latter decision is under appeal), the Quebec Court of Appeal recently decided (this past September) the case of R. v Brunelle et al. [7] [ 147 ] This case concerned a large drug operation involving over 25 accuseds. One of the main issues addressed was the right to counsel.

The context of that issue concerned the trial judge finding in essence that while the police officers informed the accuseds of their right to counsel, they did nothing to facilitate and permit the exercise of the right without delay, instead just waiting, systematically, for them to be brought to the police station before allowing them to speak to counsel. [ 148 ] The Court of Appeal granted the appeal of the decision of the first judge, who excluded the evidence, and ordered a new trial.

At par. 65 the Court of Appeal states that the timeline within which police officers must provide to a detained person a reasonable opportunity to exercise their right to counsel will vary depending on the totality of the circumstances that the police officer must consider when they are called upon to decide if they will permit the person to contact a lawyer forthwith.

There are imperatives that include safety, confidentiality, integrity of search in progress, the preservation of evidence that must be considered that may justify delaying the exercise of one's right to counsel, including the absence of communication tools on site. [8] [ 149 ] At par. 74, the Court adds that police officers must obviously inform the person arrested of their right to instruct counsel without delay and this is required at the moment the person is arrested. This is police's first duty. Their second duty is to provide the person with a reasonable opportunity to exercise their right.

The Court then states that this second component only takes effect when the person arrested requests to communicate with counsel or expresses a desire to do so.

Hence, the police officer who has duly informed the arrested person of their right to counsel, is not required to take measures to permit the person to exercise their right to counsel until that person manifests that they wish to do so. [9] [ 150 ] In the case at bar, upon consideration of the law on this specific issue of whether Cst Gagnon Hamel was required to permit access or consider permitting access to a lawyer at the site of arrest, the Court is satisfied on a balance of probabilities that there was no violation of any specific obligation he has in this regard. [ 151 ] Cst Gagnon Hamel, who has in the past allowed detained persons to communicate with counsel at locations of police interventions, in this case considered the circumstances, such as the fact the accused's cell phone was seized as evidence in the investigation and the fact they were 4 minutes away from the police station, he would not have permitted him to contact a lawyer at the

site of arrest. He also stated that he took steps to ensure that the duration of their intervention at the site of arrest would be completed as soon as possible. [ 152 ] Having considered all the circumstances and the case law on this issue, the Court finds that Cst Gagnon did not breach the accused right to counsel in this regard. [ 153 ] Turning now to the issue of whether he violated his duty to refrain from eliciting evidence from the Applicant, who had not waived his right to counsel at this point. [ 154 ] The police have the common law power to conduct searches incident to arrest of a detained person.

A search incident to arrest must be based on reasonable grounds to believe that it is necessary for a valid purpose related to the arrest. These include officer safety and / or discovering or to preserve evidence. [ 155 ] Furthermore, in R v Harris [10] the Ontario Court of Appeal found that

section 8 of the Charter can be engaged even in the absence of a physical search. The Court states at par. 34: Answers to police questions may or may not give rise to a

section 8 claim. As with other aspects of the

section 8 inquiry, a fact-specific examination of the circumstances is necessary. Where the subject of the questioning is under police detention and reasonably believes that he or she is compelled to provide the information sought in questions, I do not think it distorts the concept of a seizure to describe the receipt if the information by the police as a non-consensual taking of that information from the detained person. [ 156 ] On this issue, the Applicant also submitted the case of R v Hassan [11] .

The circumstances of this case involved a finding by the trial judge of serious police violations of the accused's rights and a conclusion that the officers involved misunderstood their duty to refrain from eliciting evidence from the accused. [ 157 ] In the circumstances of that case, after the accused's gunpoint take down and arrest that followed, the accused was informed of his rights, including his right to counsel and he in fact did advise police that he did wish to contact a lawyer.

At this point the officers warned him that he would be strip searched once he arrived at the cell block and that it was in his best interests to turn the drugs over to them now. The officers thought it was OK for them to ask these questions to the accused because they thought the accused could simply choose not to respond. In fact the accused did surrender drugs he had hidden in his buttocks at that time. [ 158 ] The circumstances of the case at bar are significantly different than those in Hassan .

Based on this Court's findings of fact, the circumstances do not involve findings of multiple serious Charter violations made in that case. Furthermore, in Hassan the officer said much more to the accused, which amounted to basically an ultimatum in circumstances where he is being informed that when he is going to be searched later, once he arrives at the cell block, the following will happen.

The police speak in a manner that suggests it is foregone conclusion and so he may as well just give it to them now. [ 159 ] A further distinction is the fact that when the officer made these comments they actually did not know if he actually had something in his buttocks area. He had already been previously subjected to a pat down search and the officer did not come across an object in the accused's buttocks area.

It is only after Hassan was observed reaching behind his waistband area, after the pat down search was already completed, that the officer had a suspicion he might have drugs there. [ 160 ] In the Applicant's case there is no finding regarding egregious police conduct as made by the trial judge in Hassan . Furthermore, Cst Gagnon Hamel was actively involved in a frisk search and actually felt something near the groin area. He in fact knew there was something that he was required and allowed to retrieve. He did not proceed to asking any series of questions nor make any comments such as those made to Hassan.

He was in essence completing a search authorized by law and out of concern for the applicant's physical integrity, so not to have to conduct a more intrusive search, he simply asked if he would retrieve the object (that the officer did not know what it was) and the accused retrieved it immediately and handed it to him. [ 161 ] The conduct of Cst Gagnon and those few words he put to the Applicant, to avoid a more intrusive intervention, was part of a legal search incidental to arrest.

The Court does not find that in the particular circumstances of this case that his conduct amounts to a violation of his duty to refrain from eliciting evidence from the Applicant as part of his duties under

section 10(b). Finally the Court finds, based on the evidence it accepts, that the search was conducted in a reasonable manner. [ 162 ] As it relates to the seizure of the scale in the vehicle, it is settled law that police may search incident to arrest the interior cabin of a vehicle. In R v Caslake [12] , the Supreme Court of Canada ruled that a search by police of a car for the purpose of finding (or as in this case, seizing) evidence is within the scope of police powers of search incident to arrest. [ 163 ] Consequently, after considering the totality of the evidence and circumstances of this case, the Court concludes that the Applicant's rights under

section 8, 9 and 10(

a) and (

b) were not violated. [ 164 ] The Court will add the following: Alternatively, even if the court is mistaken in that by asking the accused if he would retrieve the object in his boxers, this amounted to a breach of his duty to refrain from eliciting evidence from the applicant, since he had not had an opportunity to speak to counsel nor had he expressly waived his right to counsel, the Court still would not have excluded the evidence. [ 165 ] In R. v.

Grant [13] the Supreme Court sets out the three factors that must be considered and balanced in determining if admitting evidence would bring the administration of justice into disrepute. [ 166 ] First, the Court considers the seriousness of the Charter infringing state misconduct. Secondly, the impact on the Charter protected interests of the accused must be considered. Third, the Court must consider society's interest in the adjudication of the alleged crime on the merits. [ 167 ] Under the first line of analysis, the Court must evaluate the seriousness of the state misconduct, keeping in mind that the more

serious the misconduct that constitutes the violation, the greater the need for the courts to distance themselves from such conduct. [ 168 ] In the present circumstances, the Court deems that Cst Gagnon Hamel's request to the Applicant to hand over to him whatever he had in his boxers was done as an integral part of the search. He did so in good faith in order to avoid a more intrusive search that would have required police to actually conduct a strip search.

Cst Gagnon proceeded in this manner as he was conducting the search that he was authorized by law to conduct. [ 169 ] The seriousness of such a violation, if there is one, is minimal in light of the circumstances. [ 170 ] Regarding the second factor, which is the seriousness of the impact of the Charter breach on the accused's Charter protected interests, requires consideration of the doctrine of "discoverability".

This doctrine distinguishes cases involving the accused persons being conscripted against themselves as necessary to the collection of the evidence versus circumstances where the evidence existed independent from the accused conscription and would have been discovered in any event. [14] [ 171 ] In this case if there was any Charter infringing conduct it did not cause the evidence to become available. It existed independent of any violation of his rights. Accordingly, in such cases, the impact of the misconduct is mitigated or minimal.

Such is the case in light of the circumstances of the discovery of the drugs on the Applicant. [ 172 ] The third factor, in determining whether the admission of evidence would bring the administration of justice into disrepute, concerns society's interest in the adjudication of the crime on the merits. [ 173 ] One aspect to consider here is that drugs were seized and a scale. These items do not raise concerns as to their reliability.

Excluding evidence considered reliable is among the concerns that may undermine the truth seeking function of the court. [ 174 ] Whether the evidence is important to the prosecution is another factor that must be considered. Indeed in this case the evidence is key to the prosecution of the serious crime of possession for the purpose of trafficking. Excluding this evidence would essentially gut the prosecution's case. [ 175 ] Finally, courts are reminded that the public has a heightened interest in seeing a finding on the merits particularly when an alleged offence is serious.

The charge in this case, as already mentioned, is certainly serious. [15] [ 176 ] In final analysis, after balancing these three lines of inquiry, the Court concludes without hesitation that it is in fact the exclusion of the evidence that would bring the administration of justice into disrepute. CONCLUSION FOR THE ABOVE REASONS , the Application, pursuant to section 24(2), is DISMISSED . __________________________________ RICHARD MEREDITH, J.C.Q. Me Jennifer Morin Criminal and penal prosecutor Me Leonardo Russomanno Counsel for the accused Date of hearing: October 18 2021