R. v. Singh, 2011 ONCJ 499

COURT FILE No.: Old City Hall Citation: R. v. Singh , 2011 ONCJ 499 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ANEESH SINGH Elizabeth Jackson ....................................................................................................... for the Crown Ryan Clements .................................................................................. for the accused Aneesh Singh CHAPIN J.: Introduction [ 1 ] Mr. Singh is charged with carrying a concealed weapon, possession of a weapon while attending a public meeting and possession of a weapon for a purpose dangerous to the public peace.

The alleged weapon was a t-shirt with one sleeve tied in a knot with a lock inside. [ 2 ] The offence date is June 26, 2010. In June of 2010 Toronto hosted a meeting of the G20 leaders. Public officials had anticipated that there would be massive protests and demonstrators descending upon the city and an integrated security unit consisting of police officers from a number of regions joined together to attempt to secure downtown Toronto. [ 3 ] The Toronto Police Service was responsible for safety and security in areas outside the three metre high fence that encircled the summit site.

Officers were told that they could search anyone within five metres of the security fence. However, one day before the Toronto Summit lawyers for the Integrated Security Unit told police that their expanded powers only applied to areas within the security fence. [ 4 ] June 26, 2010 was a day of protests and clashes between the police and the public in downtown Toronto. Although there were many peaceful protesters there were also members of the so called “black bloc”. Members of the black bloc were know to cover their faces while creating havoc and then remove the black clothing and disappear back into the crowd.

In the afternoon of that day a number of black-clad people broke off from a crowd of peaceful protests and the situation quickly spun out of control. Police cars were torched in the financial district and several people were smashing windows of stores and banks with baseball bats and hammers and stealing what they could. [ 5 ] The incident before the court occurred near the security fence during the outbreak of violence on that day. [ 6 ] As Mr. Singh brought an application pursuant to the Canadian Charter of Rights and Freedoms , the matter proceeded as a blended voir dire and trial.

The crown called 3 witnesses and Mr. Singh testified in his own defence. The police evidence and the evidence of Mr. Singh as to what occurred during the incident differ significantly; therefore, I will review the evidence of each of the witnesses. Evidence (

a) Sergeant Shane Griffin [ 7 ] On June 26, 2010 Sergeant Griffin was detailed to secure the outer perimeter fence at Blue Jays Way along with a number of other officers. The police had concerns that a portion of the fence near the railway tracks was vulnerable. He had been advised that there was a concern that some individuals might try to breach the fence. At approximately 5:25 p.m. the situation downtown was very tense and dynamic as police cars had been set on fire. Sergeant Griffin could see the smoke from the police cars.

He didn’t see windows being broken but he was receiving information as to what was happening as it occurred. He was told, along with the other officers, to go behind the security fence. [ 8 ] The protesters were north of the officers’ location and Sergeant Griffin noticed Mr. Singh walking southbound from that area. Mr. Singh was about 200 feet away from Sergeant Griffin, who was inside the fence, when he first saw him. Sergeant Griffin’s attention was drawn to him because he seemed so calm.

In cross-examination Sergeant Griffin was asked if he had been told that he had the power to detain and search anyone who was within 5 metres of the fence and he advised that he thought he had been told

that the following day but conceded in cross examination that he could have heard that a day or two before June 27, 2010. His understanding was that anyone entering the secure area could be detained and searched. [ 9 ] Mr. Singh continued walking and then sat down on a concrete planter. From Sergeant Griffin’s point of view Mr. Singh was partially hidden by trees and bushes and was leaning back and scanning the fence line and the officers. Mr. Singh was about 100 feet away from the fence at this time and was not within five metres of the security fence. A number of things made Sergeant Griffin concerned about Mr.

Singh. Mr. Singh arrived just after the chaos that was happening, he was close to the fence in an area that could be breached and he appeared to be watching what the police were doing, Mr. Singh was dressed in dark clothing, including a dark hoodie and he was carrying a backpack that appeared heavy, perhaps because it contained a weapon. [ 10 ] Sergeant Griffin and Sergeant LeMaitre decided to walk towards Mr. Singh as they wanted to see what he was up to. As Sergeant Griffin got closer to Mr. Singh he observed a clear small baggie right beside Mr. Singh. Mr.

Singh was eating a sandwich and Sergeant Griffin asked him what was in the bag. Mr. Singh said that is was a joint that he had just smoked, so there was not any left. Sergeant Griffin said he had noticed the odour of marijuana, but conceded in cross-examination that he did not note it in his notebook. [ 11 ] Sergeant Griffin told Mr. Singh to stand up and turn around and arrested him for possession of marijuana and advised him of his rights to counsel. Mr. Singh asked him if he had been doing anything wrong and the officer told him he was under arrest. Both officers tried to take Mr.

Singh’s back pack and he told them they had no right to take his bag and a struggle ensued. Mr. Singh refused to put his hands behind his back but he was not punching out at the officers. This resistance lasted for about one minute then Sergeant Griffin punched him on the side to divert his attention. Sergeant Griffin agreed in cross-examination that he may have punched him more than once. Mr. Singh was then pushed face first onto the planter after the arrest. [ 12 ] Sergeant LeMaitre got the back pack and Sergeant Griffin grabbed the bag that had contained marijuana.

Sergeant LeMaitre searched the backpack and found a shirt with a padlock in a sleeve that had been tied off at the end and Mr. Singh was arrested for weapons dangerous and carrying a concealed weapon. The padlock was the type you would see in a locker room at a gym. Sergeant Griffin was not watching Sergeant LeMaitre search the bag. Sergeant Griffin read Mr. Singh his rights to counsel again and cautioned him. Mr. Singh’s response was to laugh. Sergeant LeMaitre gave the backpack and the long sleeved shirt with the lock in it to Sergeant Griffin. [ 13 ] Sergeant Griffin identified a document called a “hot sheet”.

At the end of page two at the bottom of the report under the heading “report prepared by” Sergeant Griffin’s name is handwritten and he also initialled it; however he testified that Sergeant LeMaitre had filled it out. This was a form that had been prepared for arrests during the G20. In cross-examination counsel for Mr. Singh pointed out that the “hot sheet” said that the marijuana was located in the backpack. Sergeant Griffin agreed that that was in the document and said he didn’t know why as it was the shirt with the lock that was located in the backpack.

He said that he had made an error in missing that when he read and signed the report. [ 14 ] After Mr. Singh was handcuffed he became more subdued and relaxed. A court officer came later and took custody of Mr. Singh. (

b) Officer Robert LeMaitre [ 15 ] Sergeant LeMaitre testified that he was also working fence detail on June 26 th , 2010 along with Sergeant Griffin. At 5:25 p.m. he observed that accused wearing a black jacket with a hood coming from the area where the protests were happening. He estimated that he was about 200 feet away from Mr. Singh when he first saw him and that he was outside of the security perimeter. He observed Mr. Singh sit down on a planter and his impression was that Mr. Singh was trying to hide as there were some trees and bushes there. He estimated that Mr.

Singh was about 100 feet away from the fence. [ 16 ] Sergeant LeMaitre recalled that he said something to the effect of “I am going to go have a word with this guy” and Sergeant Griffin followed him. As they approached the accused Sergeant LeMaitre saw Mr. Singh making the motion of someone smoking and he could smell marijuana when he was a few feet away. He also saw Mr. Singh drinking something he thought was a bottle of beer As Sergeant LeMaitre got closer he could see a small 1 - 2 inch zip lock bag beside the accused on the ledge containing what appeared to be marijuana.

He saw smoke and smelled the odour of marijuana. Sergeant LeMaitre conceded in cross-examination that he had not made any notes in his notebook about smelling marijuana, the drinking motion or the smoking motion he attributed to Mr. Singh. Sergeant LeMaitre was of the opinion that the smell was that of burnt marijuana. When Sergeant LeMaitre approached the accused he did not see smoke anymore but he could still smell the marijuana. [ 17 ] Sergeant Griffin advised the accused that he was under arrest and also read him his rights to counsel.

Sergeant LeMaitre went to grab the backpack and search it under the authority of search incident to arrest and Mr. Singh grabbed the Sergeant’s arm and told Sergeant LeMaitre that he couldn’t look into the backpack. At that point Sergeant Griffin tried to handcuff Mr. Singh to the rear. [ 18 ] Mr. Singh was resisting by refusing to put his hands behind his back. Sergeant LeMaitre and Sergeant Griffin both pushed Mr. Singh into the flower bed and Sergeant LeMaitre punched Mr. Singh in the shoulder and neck order to try distract him and to get him to cooperate. He estimated that he punched Mr.

Singh three or four times. He didn’t recall how many times Sergeant Griffin punched Mr. Singh. Once Mr. Singh was handcuffed he wasn’t punched again. Mr. Singh became very cooperative and apologetic after being handcuffed. Sergeant LeMaitre said he said words to the effect that he was a little jacked up from the protest. [ 19 ] Sergeant LeMaitre proceeded to search the knapsack and located some medicine and a health card. He also thought that there was some beer in the knapsack. He also found a blue t-shirt that felt heavy.

The officer noticed that one end of the t-shirt was tied in a knot and when he looked inside of the shirt he saw a lock. Sergeant LeMaitre asked Mr. Singh what the t-shirt with the lock was and Mr. Singh put his head down and did not say anything. Sergeant LeMaitre assumed that the t-shirt with the lock was a homemade weapon of some sort and advised Sergeant Griffin that he had found a t-shirt with a lock in it. Sergeant Griffin advised Mr. Singh that he was also under arrest for carrying a concealed weapon and possession of a weapon for a purpose dangerous to the public peace.

[ 20 ] Once Mr. Singh was under control they stood by for a long period of time waiting for a court wagon to attend and pick up Mr. Singh. Mr. Singh and his property were turned over to Officer Dube. [ 21 ] Sergeant LeMaitre was shown the hot sheet and said that he was not the author and did not recognize it. He did not know who had filled it out. [ 22 ] Defence counsel made a number of suggestions to Sergeant LeMaitre that he denied as follows: • That he or Sergeant LeMaitre twisted Mr.

Singh’s ear. • That the lock was not in the t-shirt but was in the front small compartment of the knapsack. • That there was beer inside the t-shirt, not a lock. • That he thought he could search the bag because Mr. Singh was close to the security fence, and • That one of the officers said “don’t you know it is the G20”. (

c) Detective John Dunlop [ 23 ] Detective Dunlop was working at the Prisoner Processing Centre located on Eastern Avenue on June 26, 2010. He was on the night shift that started at 6:00 p.m. Detective Dunlop testified that the procedure that day was for arresting officers to fill out a “hot sheet” in the field and call for transport to pick up the prisoner. Apparently “hot” stands for “hand off team”. The sheet was to stay with the prisoner and the transport team would take the prisoner to the processing centre.

Any property that a prisoner had was taken separately by a different team of officers. [ 24 ] With respect to the “hot sheet”, there was a number on top of the sheet that would correspond to a computer file. Once a prisoner arrived at the processing centre they would be searched and asked a series of questions and then placed in a holding cell. The hot sheet would then be taken to the investigative

section located in the processing centre and an officer there would commence the investigation. It was exceptionally busy as there were approximately 1100 prisoners brought through the center. [ 25 ] Detective Dunlop commenced the investigation into Mr. Singh when he arrived for work. He read the reports relating to Mr. Singh and based on that he felt he had reasonable grounds to investigate based on the description of the property recovered. The time of the arrest was noted on the “hot sheet” as 5:30 p.m.

He felt that it was important to review it to see if it did meet the definition of a weapon; however, when he went to look for it he was told it wasn’t located and they didn’t know where it was. Detective Dunlop agreed in cross-examination that this document would inform his decision as to whether or not a charge would be laid as well as his decision to release a prisoner from the centre or to hold them for a show cause hearing. [ 26 ] Detective Dunlop went to an interview room to speak with Mr. Singh at 7:30 p.m. Detective Dunlop reviewed Mr.

Singh’s personal information and confirmed his identification and explained the process and answered any questions he had. Detective Dunlop explained that it was not an interview to ask him about the event. Detective Dunlop went on to ensure Mr. Singh had access to duty counsel. Access to duty counsel occurred at 10:30 p.m. Apparently there were long line ups for use of telephones. (

d) Aneesh Singh [ 27 ] Mr. Singh is 23 years old and is a university student. On June 26, 2010 he was living downtown and was curious about the G20 meeting. He was living downtown with his father and left home in the afternoon and walked to several places downtown. He walked to Queen St. and University Avenue and noted that there was a large police presence there. Mr. Singh stayed there and observed for about 20 minutes and then went to Queen St. and Spadina Avenue. At that location he observed some protests and clashes with police.

He stayed there for approximately ½ hour and then headed south and encountered more activity by King St and Bay St. then headed south to Front St. and started walking around the perimeter fence. Mr. Singh had heard about the five meter set-back so he made sure that he didn’t get too close to the fence. He encountered some police along the way who were making sure that people were moving along. He walked along the north side of the street to the point where the perimeter fence goes south and went into a food store and purchased a chicken wrap. [ 28 ] When Mr.

Singh came out of the store he walked south on Blue Jay Way and sat down on a planter to eat his sandwich. [ 29 ] Mr. Singh was wearing a t-shirt and a windbreaker over it and had a knapsack with him. Inside his knapsack he had medicine, three or four bottles of beer that he brought from home in case he went to a friend’s house, a long sleeve shirt that was wrapped around the bottles to keep them from banging against each other, a sketchbook, a combination lock in a different compartment of the bag and some marijuana. He also had his wallet with his identification and some money. [ 30 ] As Mr.

Singh was eating his sandwich two officers approached him and asked him to stand up and turn around. He asked the officers if he was doing anything wrong and did not get a response right away but Sergeant LeMaitre said “don’t you know it’s the G20”. The officers started to get physical with him and were attempting to put Mr. Singh’s arms behind his back to cuff him. After he was cuffed they pushed him over and Sergeant LeMaitre punched him in the back of the head and in the back. Then, Sergeant Griffin started going through Mr. Singh’s knapsack while Sergeant LeMaitre was restraining him. Mr.

Singh had turned his head and was watching Sergeant Griffin, as he was curious as to what would be found in his bag, and Sgt. Griffin grabbed his ear and twisted it and pulled it so that Mr. Singh could not see Sergeant Griffin going through his bag. Mr. Singh advised that Sergeant LeMaitre told him that he didn’t want him watching what was going on and threatened to rip his ear off. Apparently Sergeant LeMaitre pulled his ear four or five times and held it for an extended period each time. [ 31 ] Mr.

Singh did not tell anyone at the processing centre about his ear being hurt because there were people with more extensive injuries and he thought a complaint would fall on deaf ears. However, he did tell the detectives that he had been struck by the

officers. [32] Mr. Singh saw Sergeant Griffin remove some beer bottles and the shirt. Sergeant Griffin also pulled out a baggie with astem of marijuana. Mr. Singh was surprised to see the bag as he had forgotten about it and one of the officers said “this is enough to putyou away”. Sergeant Griffin found a lock in the backpack and Sergeant LeMaitre said “look what we found, it’s all over now”. Mr. Singhasked what Sergeant LeMaitre meant and was told that it was a weapon. Mr. Singh was puzzled and asked how the lock could be aweapon and Sergeant LeMaitre said “oh, you will see”.

At that point two or three additional officers approached them and one of theofficers went through his sketchbook. The same officer was told to take the beer bottles, empty the contents, and throw them out. Whilethe officers were waiting for the transport wagon Mr. Singh saw Sergeant Griffin place the combination lock into the sleeve of his shirtand saw that there was a knot at the end of the sleeve. In cross-examination he said that that he saw Sergeant Griffin tie the knot but hedidn’t realize what it was that Sergeant Griffin was doing until later.

In cross-examination he also said that Sergeant Griffin tied the knotwhile he was facing the planter, not while he was waiting to be transported. [33] Mr. Singh was transported to the detention centre after waiting for approximately 1½ hours and was unloaded andprocessed and the charges were read out to him. Mr. Singh said it was at this point that he realized what Sergeant Griffin had done. Mr.Singh spoke with the detective and tried to explain what had happened but they seemed to be more interested in asking him questionsabout what had happened that day to determine if Mr.

Singh had information about the burning of the police cars and the brokenwindows. Mr. Singh didn’t have any information about that. Mr. Singh was also given the opportunity to speak with duty counsel. [34] Mr. Singh denied smoking marijuana or drinking beer on that day. The Charter Application [35] Mr. Singh’s has brought an application for an order granting the exclusion of evidence pursuant to section 24(2) of theCanadian Charter of Rights and Freedoms. Mr. Singh states that his s.7, 8, 9, 10 (

a) and (

b) and 11(

e) have been breached. I didn’t hearsubmissions with respect to s. 11(e), therefore I will not address that part of the application. The relevant sections read as follows: [36]

Section 7 - Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof exceptin accordance with the principles of fundamental justice. [37]

Section 8 - Everyone has the right to be secure against unreasonable search or seizure. [38]

Section 9 - Everyone has the right not to be arbitrarily detained or imprisoned. [39]

Section 10 - Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefore and (

b) toretain and instruct counsel without delay and to be informed of that right. [40] The burden of establishing a breach falls to Mr. Singh to establish on a balance of probabilities. Analysis 1. Was the defendant detained? [41] The appropriate approach to this consideration is set out in the decisions of the Supreme Court of Canada in R. v. Grant, 2009 SCC 32 , 66 C.R. (6th) 1, R. v. Suberu, 2009 SCC 33 , 66 C.R. (6th) 127 and R. v. Harrison, 2009 SCC 34 , 66 C.R. (6th) 105. [42] At paragraph 44 of the Grant decision the court summarized both physical and psychological restraint. Paragraph 44 - In

summary, we conclude as follows: 1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical orpsychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with therestrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but tocomply. [43] In this case it is clear that there was a detention as soon as the police reached Mr.

Singh on all accounts of the evidence.The more difficult question is whether or not Mr. Singh was detained arbitrarily. 2. Was the defendant detained arbitrarily? [44] In R. v. Mann (2004), 2004 SCC 52 , 185 C.C.C. (3d) 308, the Supreme Court recognized a common law powerpolice have to detain for investigative purposes; however, this power has its limits. A decision to detain someone must be based onreasonable grounds.

At paragraph 34 and 35 of that decision the court notes that: Paragraph 34 - The case law raises several guiding principles governing the use of a police power to detain for investigative purposes.The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to bepremised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of thecircumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-goingcriminal offence.

Reasonable grounds figures at the front-end of such an assessment, underlying the officer's reasonable suspicion thatthe particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain,however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual

liberty is necessary to perform the officer's duty, the liberty interfered with, and the nature and extent of that interference, in order tomeet the second prong of the Waterfield test. Paragraph 35 - Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigatecrime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental tothe Canadian constitutional order.

Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do nothave carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest [45] In this case I find that the initial approach by the police to ask Mr. Singh a few questions was reasonable. Both officersexpressed concern at the fact that this person was coming from the area where there had been violent protests that afternoon wearingdark clothing and was sitting near the security perimeter.

However, the evidence of what the officers say gave them reasonable andprobable grounds to detain and arrest Mr. Singh causes me some concern. [46] Officer Griffin said that as he approached Mr. Singh he could see that he was eating a sandwich and said he could see asmall baggie with what appeared to be marijuana in it. Officer Griffin testified that he asked Mr. Singh what it was and that Mr. Singhsaid it was a joint he had smoked.

Sergeant Griffin also said he could smell the odour of marijuana but conceded that he had not made anote of it in his memo book and he did not see any smoke. [47] Sergeant Lemaitre’s evidence about the initial approach was different. Sergeant LeMaitre said that as he approached Mr.Singh he thought Mr. Singh might be smoking a cigarette as he saw what he described as a smoking motion, saw smoke, and said hesmelled marijuana as he got closer. He also saw Mr.

Singh drinking something he thought was a bottle of beer As Sergeant LeMaitre gotcloser he could see a small 1 - 2 inch zip lock bag beside the accused on the ledge and he saw what appeared to be marijuana in the bag.He didn’t see smoke at this time but said that he did smell the odour of marijuana. Sergeant LeMaitre conceded in cross-examination thathe had not made any notes in his notebook about smelling marijuana, the drinking motion or the smoking motion he attributed to Mr.Singh. Unlike Sergeant Griffin, Sergeant LeMaitre didn’t say anything about Mr. Singh making an admission that he had just smoked ajoint.

I would have thought that that would be something that he would remember given that the initial arrest was for possession ofmarijuana. [48] It is difficult for me to understand how it is that these officers did not note the smell of marijuana in their notebooksgiven that this was the basis for the initial arrest. It is also seems strange to me that the officers did not locate any matches, lighter, but ofa joint or paraphernalia such as rolling papers if in fact Mr. Singh was smoking a “joint”. [49] I have further concerns regarding the “hot sheet” that was marked as exhibit 1 in these proceedings.

Neither officeradmitted to writing the report. The evidence is that after the arrest of Mr. Singh Sergeants Griffin and LeMaitre waited approximately anhour for the transport wagon. There was ample time to write the report and they were the officers with firsthand knowledge of theincident. On the second page of the report under the heading “synopsis” the following sentence appears. “Upon search of back packlocate a small clear bag containing a small quantity of marijuana”.

The evidence is also clear that the report was prepared before theofficers prepared their notes. [50] Officer Griffin said that Sergeant LeMaitre had written the report and characterized the discrepancy as slightly differentand that he only took a few seconds to review it. Sergeant LeMaitre said he had never seen it before. The discrepancy can hardly becharacterized as slight as it goes to the heart of the matter as to whether or not the officers had reasonable and probable grounds to arrestMr. Singh. The discrepancies in the evidence have not been clarified and I find that the evidence is unreliable.

I find that on this point Iprefer the evidence of Mr. Singh and I reject the evidence of the officers as being unreliable. [51] Therefore I find that the officers did not have the required objective and subjective grounds to arrest Mr. Singh and thatMr. Singh has demonstrated that his s. 9 charter right has been breached. 3.

Was the search of the backpack unreasonable? [52] As set out by the Supreme Court of Canada in Mann supra any search incidental to the limited police power ofinvestigative detention is a warrantless search and are presumed to be unreasonable unless the crown can demonstrate on a balance ofprobabilities that the warrantless search was authorized by a reasonable law and carried out in a reasonable manner. See also R. v. Buhay,2003 SCC 30 , [2003] 1 S.C.R. 631. [53] Given my findings above it follows that the search of Mr.

Singh’s backpack was unreasonable and I also find that Mr.Singh has established a breach of his s. 8 Charter right. However, before moving on to the alleged s. 10 breach I will make comment onMr. Singh’s evidence that Sergeant Griffin created the “weapon” by inserting the lock into the shirt. [54] It is important to note that the suggestion was never made to Sergeant Griffin that he essentially fabricated evidence. Thisis a very serious allegation. The Ontario Court of appeal referred to Professor Mewetts’ text regarding the failure to cross-examine awitness on an important point in R. v.

Marshall 77 O.R. (3d) (ON CA), [2005] O.J. No. 3549 • Professor Mewett puts it this way in his text, supra at 2-32 [A. Mewett, Witnesses, 2nd ed., looseleaf (Toronto: Carswell, 1999)]: . . . The cost is how much credence a fact finder will give to evidence that is introduced for the first time after the witnesswhose testimony is now being questioned has finished testifying and who no longer has an opportunity to tell his or her sideof the story. As such, it may be unwise not to cross-examine an opposing witness when he or she is on the stand if it isintended to contradict that witness's evidence. . . .

The trier of fact may well wonder why there was no cross-examination,and take that into account in determining what weight to give to the contradictory testimony… [55] The court may believe all, none or some of a witness' evidence: D.R. et al. v. The Queen (1996), (SCC),107 C.C.C. (3d) 289 (S.C.C.) per L'Heureux-Dubé J. (in dissent in the result) at 318; Regina v. Hunter, [2000] O.J. No. 4089 (C.A.) atpara. 5 per curiam; Regina v. Abdallah, (ON CA), [1997] O.J. No. 2055 (C.A.) at para. 4, 5 per Carthy and Goudge

JJ.A. [56] In this case I place no weight on Mr. Singh’s claim that the police created this weapon. It doesn’t make sense to me thatthe police would go to such an extreme when they had already placed him under arrest. I also take into account Mr. Singh’s evidence incross-examination on this point with respect to the timing of the alleged knot tying on the part of Sergeant Griffin and whether or not hesaw any tying of the knot. His evidence was not straightforward and I don’t accept it on this point. I also do not accept Mr.

Singh’sevidence that his ear was twisted by Sergeant LeMaitre while the search of the backpack was occurring. It just doesn’t make sense to me,especially since the officers could have just walked him away somewhere. They were in the area for more than an hour before thetransport wagon arrived. 4. Were Mr. Singh’s

section 7 rights infringed? [57] I will deal with this issue briefly as this was not the focus of Mr. Singh’s application and submissions were brief. Theevidence of the officers is that Sergeant LeMaitre punched the accused three or four times and that Sergeant Griffon punched him oncewhile attempting to handcuff Mr. Singh. [58] This is not a situation akin to that in R. v. Tran 2010 ONCA 471 , [2010] O.J. No. 2785 where excessive forcewas used such that the charges should be stayed. Mr. Tran suffered serious permanent injuries and the police conduct in the case wasegregious. [59] It appears that Mr.

Singh had no visible injuries and that the officers stopped the punches once he was under control. 5. Were Mr. Singh’s

section 10 Charter rights breached? [60] The Supreme Court of Canada in Suberu supra held that rights to counsel must be provided immediately to a person assoon as they are detained. [61] In this case I find no reason to disbelieve Sergeant Griffin’s evidence that he did so. His evidence on the point was clearand he was not seriously challenged in cross-examination about this. [62] With respect to the duty to cease questioning of a suspect set out in R. v. Manninen (SCC),[1987] S.C.J. No. 41 Detective Dunlop’s evidence was that he went in to speak with Mr.

Singh to provide him with basic informationand to answer questions he had about the process. I found Detective Dunlop to be a credible witness and I accept his evidence that hemade no attempt to elicit evidence from Mr. Singh that would tend to incriminate him. [63] In conclusion I find that Mr. Singh has not established a s. 10 Charter violation. 6. Should the alleged “weapon” be excluded in light of the s. 8 and 9 Charter breaches – S, 24(2) analysis? [64] In R. v.

Grant, the Supreme Court of Canada modified the analytical framework for the exclusion of evidence In under s.24(2) of the Charter: [65] When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting theevidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send a message the justice system condonesserious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message thatindividual rights count for little), and (3) society's interest in the adjudication of the case on its merits. [66] The court's role on a s. 24(2) application is to balance the assessment under each of these lines of inquiry to determinewhether, considering all of the circumstances, admission of the evidence would bring the administration of justice into disrepute. (

a) Seriousness of the breach [67] The arrest of Mr. Singh without reasonable and probable grounds and the subsequent search are serious breaches in thesecircumstances. The police conduct cannot be justified as good faith breaches. There was either carelessness in terms of theirunderstanding of whether or not they were entitled to search Mr. Singh and his backpack or there was a reckless disregard for Mr.Singh’s rights. This favours exclusion of the evidence. (

b) Impact of the Breaches upon Mr. Singh’s Charter Rights [68] Mr. Singh had a strong expectation of privacy in his backpack. In this case Mr. Singh’s mobility and liberty rights wereimpacted, he was kept in custody overnight and was subjected to a strip search. This had a major impact on the accused and this favoursexclusion of the evidence in my view. (

c) Society’s Interest in an adjudication on the Merits [69] The evidence here is reliable, the charge is relatively serious; however, I note the weapon involved is not a knife or gunand seems likely to be designed to inflict damage to property rather than people. The evidence is critical to the crown’s case. An

assessment of this factor weighs in favour of admission of the evidence. [ 70 ] In balancing these interests I must determine whether or not the admission of the evidence would bring the administration of justice into disrepute. This must be understood in the long-term sense of maintain the integrity of, and public confidence in, the justice system. The question is whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute.

The focus is not only long- term but prospective. [ 71 ] Although society has an interest in adjudication on the merits on balance I find that the conduct and impact of the breaches outweigh that interest. [ 72 ] Accordingly the evidence is excluded. Given this the crown’s case necessarily fails. The charges against Mr. Singh are dismissed. Released: Wednesday, September 28, 2011 Signed: “Justice L. Chapin”