R. v. Singh, 2010 ONCJ 159

Citation: R. v. Singh , 2010 ONCJ 159 ONTARIO COURT OF Justice Central West Region BETWEEN: HER MAJESTY THE QUEEN -and- Harvinderpaul Singh (Information Number 09-1969) -and- BETWEEN: HER MAJESTY THE QUEEN -and- Arif Mekheal (Information Number 09-2359) -and- BETWEEN: HER MAJESTY THE QUEEN -and- Sivasundaram Sivashankar (Information Number 09-2584) -and- BETWEEN: HER MAJESTY THE QUEEN -and- Tariq Shaikh (Information Number 09-1906) -and- BETWEEN: HER MAJESTY THE QUEEN -and- Kahsif Ali (Information Number 09-1373)

In the matters of prosecutions under the Trespass to Property Act, R.S.O. 1990, c. T.21 , as amended, Proceedings conducted January 31, 2010 Decision and Reasons issued April 29, 2010 including an interim Crown motion for a ruling that statements made by the defendant Tariq Shaikh were voluntary and admissible as evidence in the trial of the charge against him, Appearances: R. Patterson ...................................................................................................... for the Crown R. Litkowsky ................................................................................................... for the defence Statutes Considered or Cited: Highway Traffic Act, R.S.O. 1990,

CHAPTER H.8 , as amended (hereinafter “ HTA ”) Provincial Offences Act, R.S.O. 1990, c. P.33 , as amended (hereinafter “ POA ”) Trespass to Property Act, R.S.O. 1990, c. T.21 , as amended (hereinafter “ TPA ”) Cases Considered or Cited: Committee for the Commonwealth v. Canada , 1991 CanLII 119 (SCC) , [1991] S.C.J. No.3 Mississauga (City) v. Greater Toronto Airports Authority, 2000 CanLII 16948 (ON CA) , [2000] O.J. No 4086 R. v. Asante-Mensah, [1996] O.J. No. 1821 R. v. Clouston ( Ont. Dist. Ct. ) [1986] O.J. No. 1869 R. v. Clouston, [1984] O.J. No. 3077 R. v. Grant, 2009 SCC 32 (CanLII) , [2009] S.C.J.

No. 32 R. v. Kienapple, 1974 CanLII 14 (SCC) , [1974] S.C.J. No. 76 R. v. Reddy , 2010 BCCA 11 R. v. Suberu, 2009 SCC 33 (CanLII) , [2009] S.C.J. No. 33 R. v. Trabulsey [2009] , unreported decision of Cooper, J dated October 16, 2009 R. v. Trabulsey, 1995 CanLII 1414 (ON CA) , [1995] O.J. No. 542 R. v. White, 1999 CanLII 689 (SCC) , [1999] 2 S.C.R. 417 Reference re ss. 193 and 195.1(1)(

c) of the Criminal Code ( Man. ), 1990 CanLII 105 (SCC) , [1990] 1 S.C.R. 1123 (the “Prostitution Reference” ) Toronto (City) v. Bednarski, 2009 ONCJ 327 York ( Regional Municipality ) v. Winlow, 2009 ONCA 643 (CanLII) , [2009] O.J. No. 3691 Witnesses Called by the Crown Anthony Korosec , Police Officer employed by Peel Regional Police (hereinafter “ PRP ”), in respect of charges against Tariq Shaikh, Kahsif Ali and Harvinderpaul Singh April Chapman , Groundside Safety Officer (hereinafter “GSO”) employed by the Greater Toronto Airports Authority (hereinafter

“GTAA”), in respect of the charge against Sivasundaram Sivashankar Daria Chomiak , Police Officer employed by PRP, in respect of the charge against Sivasundaram Sivashankar Jeffrey Charles Lavigne , Police Officer employed by PRP, in respect of the charge against Atif Mekhail Martin Lavery , GSO employed by the GTAA, in respect of the charge against Tariq Shaikh Michael Franzgrote , GSO employed by the GTAA, in respect of charges against Atif Mekhail and Sivasundaram Sivashankar Richard Garwood , GSO employed by the GTAA, in respect of charges against Tariq Shaikh and Kahsif Ali Thomas Allgeier , GSO employed by the GTAA, in respect of charges against Tariq Shaikh, Harvinderpaul Singh, and Atif Mekhail Tariq Shaikh called by the defence only for the purposes of a voir dire .

Allegations and Overview 1 . Each of the defendants were charged pursuant to s2(1)(a)(

i) of the TPA for entering onto the premises of the GTAA contrary to written notices that such entry was prohibited. On the Court docket for the day of trial were 604 lines, all setting out identical counts, involving a total of twenty eight defendants. All of these individuals, they are members of an association and as such represented by counsel for all matters before the Court. The nature of the association, and any rights or responsibilities flowing from membership by the defendants is not known to the Court. 2 .

There is clearly an extensive history to these charges, often involving the parties named as defendants in these instant matters, as well as parties listed on the docket for trial on the same dates. 3 . From the 1995 decision in R. v. Trabulsey , supra , paragraph 2 , the Court learned: The federal Department of Transport issues commercial vehicle permits to drivers of commercial passenger vehicles or courtesy vehicles ("taxi drivers").

The problem that has led to these proceedings arose when, contrary to the federal regulations, the appellants, non- federally licensed taxi drivers, began picking up passengers at the Airport. Instead of having recourse to the enforcement procedure available under the federal legislation, the Airport manager issued notices to the taxi drivers under the Trespass to Property Act, R.S.O. 1990, c.

T.21 (the " Trespass Act "), prohibiting them from entering upon the premises of the Airport. (No issue was ever raised with respect to all appellants having received the notices.) Violation of this prohibition resulted in the appellants being arrested and charged with trespassing. 4 . And, from the 1996 decision in R. v.

Asante-Mensah [1] , the Court also appreciated the following description of the related history: Over the past two decades, a number of licensed drivers, of a mind that the dedicated fleet system of which they were not a part operated unfairly, to their economic detriment, have, in any event, conducted their vehicle-for-hire business at the airport. These individuals have frequently been labelled, including by several witnesses before the court, as "scoopers" or renegade drivers. They, in effect, operate outside the legally sanctioned permit system.

Passengers, accepting their services, would undoubtedly be misled to the belief that such drivers operate with the authority of federal airport officials and be unaware, for example, that the scoopers' auto insurance coverage may well not cover mishaps during the currency of a trip in contravention of the laws already described herein. 5 . While not critical to this case, the Court found it helpful to refer to the following description of the efforts to regulate limousine service at the GTAA, as set out in R. v.

Asante-Mensah at paragraph 19: 19 Evidence at trial, including the Report of the Pearson International Airport Taxi and Limousine Task Force, Dec. 14, 1990 (the Bartlett Report to the Ontario Minister of Municipal Affairs), indicates that the current regulatory system had its origins in 1978, and was reviewed in 1986 and again in 1990 with the general conclusion that the dedicated fleet system operated best, serving the public with a premium service at reasonable cost.

The system provides air-conditioned, recent vintage vehicles for the public, drivers of appropriate background and demeanour in dealing with travellers, and, affords airport management a regime for controlling traffic patterns at the airport in a manner consistent with efficient utilization of the site.

Experience with the prior system, before 1978, was characterized by poor service, some substandard vehicles, allegations of chicanery and a lack of control which was occasionally reflected in violence. 20 Congestion, including shortage of curb-space and the pace of vehicle flow, at the Toronto Airport, the world's twentieth largest

airport in 1988, has been a constant concern for federal authorities. In 1990, about 22 million passengers were estimated to have arrived at, or departed from, the airport, an increase of about 38% over 1986. The dedicated fleet system has avoided, in large measure, the traffic control problems associated with an excessive over-capacity of commercial vehicles. The Bartlett Report noted at p. 40: ... as a practical matter a permit system has been found to be necessary, and one can expect the federal authorities to insist that vehicles picking up spontaneous fares at the airport continue to carry permits.

This is primarily a matter of regulation and control. The public holds the airport responsible for the standard of service, and the conditions attached to permits provide the basis for regulation. Experience since 1978 shows that it works. 6 . It is clear that many of the individuals now involved in these matters are well known to each other (the defendants, GSOs and police) (evidence of Anthony Korosec). Indeed, by now, all the players are quite amicable and often address each other on a first name basis. 7 .

At the request of the parties, the Court heard trial proceedings in relation to five specific allegations, as follows: in respect of Harvinderpaul Singh (Information Number 09-1970), alleged offence dated 26 June 2009; in respect of Arif Mekheal (Information Number 09-2359), alleged offence dated 14 August 2009; in respect of Sivasundaram Sivashankar (Information Number 09-2584), alleged offence dated 20 August 2009, in respect of Tariq Shaikh (Information Number 09-1906), alleged offence date 16 June 2009, and in respect of Kahsif Ali (Information Number 09-1373), alleged offence date 02 May 2009. 8 .

At the conclusion of evidence for each proceeding, the parties requested that the Court hold the matter down, to permit all the evidence related to the five matters to be presented to the Court. Once all the evidence was tendered, the parties then made submissions relating to all matters, and then invited the Court to rule on all matters. The proceedings required most of two days of trial to arrive at this stage. 9 . At the conclusion of these proceedings, the prosecution invited the Court to endorse eighteen matters involving one defendant as withdrawn, and entries were made accordingly.

Four matters involving a further defendant who was identified as not being a member of the association were set to a date to be dealt with separately. 10 . The trial matters were then remanded to 29 April 2010 for decision and reasons and all remaining matters were remanded to that same date, with the understanding that the parties would then consider the Court’s ruling and determine how best to proceed. 11 .

As the trials progressed, it became apparent that evidence was being elicited that would reasonably change the Court’s understanding of how interactions between GSOs, Peel Regional Police officers and the defendants unfolded. Given the desire of the parties to obtain some finality and direction in relation to these charges, the Crown expressed a request – indicating this to be a joint request with the defence – that all evidence be considered together and applied with necessary modifications to all the trials equally. 12 .

Based on the findings with respect to fact and law in this case, the Court finds each of the defendants guilty as charged. The Statutory Provisions 13 . The relevant provisions of the TPA are as follows:

Definitions 1.

(1) In this Act, “occupier” includes, (

a) a person who is in physical possession of premises, or (

b) person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, even if there is more than one occupier of the same premises; (“occupant”)

“premises” means lands and structures, or either of them, and includes, (

a) water, (

b) ships and vessels, (

c) trailers and portable structures designed or used for residence, business or shelter, (

d) trains, railway cars, vehicles and aircraft, except while in operation. (“lieux”) R.S.O. 1990, c. T.21, s. 1 (1) . Trespass an offence 2.

(1) Every person who is not acting under a right or authority conferred by law and who, (

a) without the express permission of the occupier, the proof of which rests on the defendant, (

i) enters on premises when entry is prohibited under this Act, or (ii) engages in an activity on premises when the activity is prohibited under this Act; or (

b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier, is guilty of an offence and on conviction is liable to a fine of not more than $2,000. R.S.O. 1990, c. T.21, s. 2 (1) . Prohibition of entry 3.

(1) Entry on premises may be prohibited by notice to that effect and entry is prohibited without any notice on premises, (

a) that is a garden, field or other land that is under cultivation, including a lawn, orchard, vineyard and premises on which trees have been planted and have not attained an average height of more than two metres and woodlots on land used primarily for agricultural purposes; or (

b) that is enclosed in a manner that indicates the occupier’s intention to keep persons off the premises or to keep animals on the premises. R.S.O. 1990, c. T.21, s. 3 (1) . Limited permission 4.

(1) Where notice is given that one or more particular activities are permitted, all other activities and entry for the purpose are prohibited and any additional notice that entry is prohibited or a particular activity is prohibited on the same premises shall be construed to be for greater certainty only. R.S.O. 1990, c. T.21, s. 4 (1) . Limited prohibition

(2) Where entry on premises is not prohibited under

section 3 or by notice that one or more particular activities are permitted under subsection (1), and notice is given that a particular activity is prohibited, that activity and entry for the purpose is prohibited and all other activities and entry for the purpose are not prohibited. R.S.O. 1990, c. T.21, s. 4 (2) . Method of giving notice 5.

(1) A notice under this Act may be given, (

a) orally or in writing; (

b) by means of signs posted so that a sign is clearly visible in daylight under normal conditions from the approach to each ordinary point of access to the premises to which it applies; or (

c) by means of the marking system set out in

section 7. R.S.O. 1990, c. T.21, s. 5 (1) . 14 . The relevant provision in the Traffic on the Land Side of Airports Regulations (hereinafter “ TLSARs ”) is as follows: 9.

(4) An airport operator may move and store in a suitable place a vehicle that has been parked or stopped in contravention of this Part or of a notice prohibiting that vehicle from entering or parking on airport property. The Issues

15 . There are a number of issues to be determined by the Court. These include: A . whether evidence given in voir dire establishes in relation to Tariq Shaikh that statements made by him were voluntary and admissible in the trial proper B . whether the act of trespass as defined by the statute has been proven, C . whether, in relation to answering the question in sub-paragraph (

B) above, the failure of the Crown to provide complete disclosure, by failing to produce copies of lists or reports relied upon by GSOs and police in conducting their investigations into these and related matters, amounts to a breach of the duty to disclose and if so, whether that breach entitles the defence to a remedy by way of a stay of proceedings, and D . in the event that the answer to the question set out in sub-paragraph (

B) is “yes”, then whether the defence claim that reliance on the charging

section should lead to convictions, in light of what the defence characterizes as evidence of, in effect, male fides by the occupier, and which improperly induced the police to lay these charges, and E . further, to the extent that the argument in relation to male fides is persuasive, what weight should be attached to Crown witness evidence in relation to the source of funds used to pay Peel Regional Police officers when on duty and laying the charges before this Court? The Evidence 16 . It was taken as uncontested that GTAA is the occupier of lands and premises operating as Lester B.

Pearson International Airport (hereinafter “LBPIA”), within the City of Mississauga. The lands are federal property (Crown lands), and the operation operates under the direction of the GTAA. 17 .

The Crown called evidence in respect of all five matters, essentially establishing that each of the defendants had, on a date or dates prior to the charges before the Court, been seen upon and identified as being within the premises of the GTAA, that based on inquiries made by the investigating GSO each had been served a notice under s.3(1) of the TPA , that thereby notice had been given that entry was prohibited; subsequently they had each been found once again on the premises, thereby establishing the commission of offences under s.2(1) (a)(i). The facts in support of these allegations are uncontested. 18 .

What emerged is the following overview of the enforcement of property rights by the GTAA. 19 . There are as many as five sets of “players”, being the GTAA, GSOs, PRP, the defendants (a selection of individuals sometimes referred to colloquially as “scoopers”), and licensed limousine operators. 20 . GSOs are agents of the GTAA, working in a “uniform capacity” (evidence of Thomas Allgeier).

Although there is no direct evidence on the scope of their duties before the Court, it is clear that they monitor the premises for presence of unwanted individuals and/or individuals exhibiting undesirable behaviour, conducting related investigations with or without the assistance of police officers, issuing trespass to property notices as well as serving as a designated “agent” for the purposes of TLSARs . 21 . When GSOs observe a person on the premise conducting what they suspect is or believe to be unwanted activity, they investigate.

In the event they conclude that the GSO is satisfied that unwanted activity was undertaken, they issue a “trespass to property” notice, pursuant to the TPA . This notice advises the named individual that he is HEREBY GIVEN NOTICE pursuant to Section 3(1) of the Trespass to Property Act , r.s.o. 1990, c.T21 that you are prohibited from entering upon the premises (i.e. lands and structures) comprising Toronto-Lester B. Pearson International Airport In ACCORDANCE WITH THIS NOTICE, you are hereby directed to immediately leave the premises of Toronto-Lester B.

Pearson International Airport by the most expeditious route and not return. YOU ARE ADVISED that entry onto such premises and failure to comply with this notice are offences under Section 2(1) of the Trespass to Property Act and upon conviction you are liable to a fine of not more that $2000.00 (exhibit 1 in each trial)

22 . A French language version of this wording is also included on the form. 23 . In addition, the Notice provides the following information (again, both in English and French): NOTE: An application to the President & Chief Executive Officer for withdrawal of this notice will be considered one year after the issue, provided you have complied with Section 3(1) of the Trespass to Property Act as outlined herein.

In the event that you are charged and convicted in court for failure to comply, the application will not be considered until one year after your last conviction and you provide proof that all fines assessed by the court have been paid. This notice does not prohibit entry on the airport for employment or travel purposes or if entry has been prohibited to one or more areas, then to other areas of the airport.

If your application for withdrawal of this notice is accepted, you will be required to sign an undertaking to abide by all the GTAA Rules and Regulations in effect at the time governing activities at Toronto-Lester B. Pearson International Airport . Failure to conduct yourself accordingly will result in the issuance of a Trespass to Property Act Notice. 24 . There appear two classes of unwanted behaviour that are material for these matters. The first would be solicitation of passengers for hire. The second would be return to the premises, when previously prohibited. 25 .

As evidenced by the number of charges before this Court on this docket, as well as the innumerable charges facing other defendants, it is clear that most – if not all the defendants have been served multiple trespass notices. 26 . When individuals are served trespass notices, the issuing GSO provides his or her copy to April Chapman, who prepares and maintains a list of all barred individuals (evidence of Thomas Allgeier). A copy of this list is provided to all GSOs as well as police who are assigned related enforcement duties.

A copy of that list was not provided in disclosure, nor was a copy tendered in evidence. The list is updated, it would appear, approximately weekly, and copies are simply disposed of when the new list is received (evidence of all officers and GSOs). 27 . In the event that the last time a person was served a trespass notice is over three months ago, then the GSO will normally issue a new trespass to property notice, refreshing the warning to the barred individual. 28 .

In the event that GSOs determine that a person should be issued trespass notice, and they have entered upon the premise of the GTAA by vehicle, they affix a notice pursuant to ss.9(4) of TLSAR to the back of the trespass notice, advising the individual that “any vehicle” associated with them upon re-entry may be subject to removal (evidence of Thomas Allgeier, Martin Lavery, and Richard Garwood). 29 .

There is varying evidence regarding any training and policy with respect to how GSOs are expected to make decisions with respect to whether to have vehicles removed from the premise, pursuant to the authority asserted in paragraph 20, above. Thomas Allgeier stated that it is his policy to have vehicles towed on all instances, although he sometimes exercises discretion based on information provided by the driver. He indicates he has received no direction or information on this from GTAA, and relies on his own reading of TLSARs . 30 .

Martin Lavery indicates that he is guided by a policy document prepared by the GTAA legal department, which is approximately five pages in length. No copy of the document was produced. He claims he has discretion to remove a vehicle or not. 31 . Richard Garwood was unable to recall whether he received any instruction or training on how to exercise his authority under TLSARs .

Although he indicated he has discretion in this regard, he later stated that even one return of a vehicle after being served notice under TLSARs is sufficient to justify removal of a vehicle, and he would routinely remove vehicles implicated in a return to the premises.

32 . The GSOs who gave evidence in respect of the removal of vehicles all indicated that they serve notice regarding potential removal of a vehicle, by affixing a sticker to the back of the trespass notice provided to a barred individual. 33 . While not tendered in evidence, it is common ground between the parties that the sticker mentioned in paragraph 32 refers to any vehicle that may be associated on further re-entry. 34 . It is common ground as well that the language set out in TLSARs requires “notice prohibiting that vehicle from entering or parking on airport property”.

Richard Garwood gave evidence that, when observing a vehicle associated with an alleged trespasser, he refers to the list mentioned in paragraph 26. 35 . GTAA requests that PRP officers be assigned “special duty” work, sometimes know as “paid duty”. During these assignments, members of PRP patrol the premise for known “scoopers”. The defendants are said to be entering upon the premise for the purpose (based on suggestions in the evidence) that they were there to solicit fares for rides away from the airport. 36 .

As indicated in paragraph 26, above, each police officer assigned to airport “special duty” is provided a current list of individuals who have been barred. These lists are circulated by e-mail by April Chapman, printed, kept readily accessible by the officer and referenced when a “known” barred individual has been sighted (evidence of Anthony Korosec). 37 . When conducting an investigation in respect of possible breach of the TPA , police officers routinely report their whereabouts to their dispatcher (apparently located on site), and often if not always request that a GSO attend. 38 .

The evidence of Anthony Korosec, in the course of the voir dire relating to the trial of Tariq Shaikh, is illustrative. Cst. Korosec indicates that he was on patrol on foot within the parking structure at Terminal 1 or the GTAA premises. He observed a white Lincoln Town car, and a person walking away from that vehicle, who, he believed was a “known scooper”. He approached the individual and requested identification, which was provided in the form of a valid, Ontario driver’s licence bearing a digital photographic resemblance of the suspect. Cst.

Korosec may or may not have referred to his list (he confirms that the group of barred individuals is well known), and confirmed that he was barred. As a result, he intended to issue a summons for an offence under the TPA . 39 . In the course of the voir dire , Cst. Korosec provided the normal evidence, confirming the location, the fact that no one else was present, that the communications were in cogent and coherent English, that the defendant was not apparently under the influence of any intoxicants, and, further, that he cautioned the defendant based on a script found in his note book.

This caution advised the defendant that the defendant was not obligated to make any statement, and that anything the defendant said would be given in evidence against the defendant. 40 . Cst. Korosec believed that the person was not detained, and therefore not required to give any caution or advice regarding rights to counsel. 41 . Under cross examination, Cst. Korosec indicated that the defendant was free to leave at any time, confirming his view that the defendant was not under detention. Cst. Korosec conceded that he maintained possession of Mr. Shaikh’s driver’s license, however, Mr.

Shaihk was certainly free to leave without it and could return at a later time to retrieve it from the police office at the airport. 42 . Indeed, he offered that Mr. Shaikh could drive away, if he chose to do so without his licence. 43 . Further, Cst. Korosec indicated that the interchange was brief and lasted only a short while. 44 . However, further evidence confirmed that, prior to approaching Mr. Shaikh, Cst. Korosec reported his involvement in an investigation and requested his dispatch office contact the GTAA office and dispatch a GSO. Cst.

Korosec advised that the purpose was to allow the GSO to determine whether the vehicle that Cst. Korosec had seen was subject to removal.

45 . It took approximately five minutes for the GSO to arrive. 46 . During that time, Cst. Korosec indicated, that, while Mr. Shaikh was indeed free to leave, that Cst. Korosec, maintaining possession of Mr. Shaikh’s driver’s licence, was probably located to the rear of Mr. Shaikh’s vehicle, barring any possible departure by car. 47 . When the GSO arrived and confirmed that the vehicle was subject to removal, then of course Mr. Shaikh was no longer free to leave by using his vehicle, and would need to find another way to leave. 48 . Based on further clarification by Cst.

Korosec, the full length of this interaction was over twenty minutes. 49 . Mr. Shaikh was the only defence witness and provided evidence in respect of the voir dire only, advising that he believed he was prohibited from leaving as long as he was engaged in discussion with Cst. Korosec. However, he was unable to provide any basis for this belief. Further, he confirmed he had made no attempt to leave. He simply relied on his overall experience with police, which includes at least one previous arrest. 50 .

By way of further evidence, and through responses of Crown witnesses, defence established that when performing “special duty” or “paid duty”, a number of officers believe that, while they were being paid by their employer, Peel Regional Police, the funding for their pay originated either from the GTAA, or, possibly, by way of levy charged to limousine operators licensed by the GTAA, in part for this express purpose (evidence of Anthony Korosec and others). There was no direct evidence regarding the origin of the funds by which these officers were paid. 51 .

By way of questions regarding the practice of removing vehicles from the GTAA premises, GSOs advised that the defendants would be liable for the costs of towing, including any costs for special requirements (which might arise, for example, depending on the direction the vehicle might be facing when being picked up by the tow operator, necessitating special equipment or handling), an impound fee, and, in the event the vehicle were not retrieved within a specified period of time, storage costs. These costs, in total could easily exceed one hundred dollars. 52 .

Again, no direct evidence was provided by knowledgeable witnesses about the exact removal procedure or related costs. However, at least one GSO referred to information he was provided by the GTAA, since drivers - other than those suspected of soliciting for hire - might have their vehicles removed (for example, when improperly parked), and GSOs provided information about how to retrieve these vehicles and attendant costs, based on these documents. The Crown’s Position Voluntariness of the statement of Tariq Shaikh 53 .

First, the Crown holds that the statements made by Tariq Shaikh –based on the evidence elicited in the voir dire - are voluntary and should be admitted as evidence in the trial proper. 54 . In the Crown’s submission, the evidence demonstrates that Mr. Shaikh was detained for limited investigative purposes, and that this detention did not trigger rights of notice to counsel, pursuant to

section 10(

b) of the Canadian Charter of Rights and Freedoms , which reads, “10. Everyone has the right on arrest or detention” inter alia “(

b) to retain and instruct counsel without delay and to be informed of that right”. 55 . Consistent with the analytic framework set out in Mann , Grant , and Suberu , the Crown argues that the detention of Mr. Shaikh was for limited investigative purposes, and did not trigger the right to counsel, nor notice in respect of the right to retain and instruct counsel. Mr. Shaikh was free to leave at any time. If Mr. Shaihk was under any impression that he was not free to leave, then he failed to establish any legal basis for that belief, and therefore his claim that he was detained cannot be objectively supported. 56 .

To the extent that Mr. Shaikh believed that his rights were infringed, the Crown notes that no prior Charter motion was brought

by the defence. The Merits of the Charges 57 . The Crown argues that the case is quite simple: the GTAA is occupier of the premises of the lands and buildings constituting LBPIA. As such, it enjoys rights under the TPA , including the right to permit or prohibit entry ( s.1(1) ). 58 . In each of the cases, an agent acting in favour of the GTAA has issued notice under the TPA , advising the individual served that they were prohibited from re-entry, and requiring them to leave ( s.3(1) ). 59 .

The named individuals, on different dates after the date or dates of notice described in paragraph 58, were observed upon the premises of LBPIA. Their presence was made known to a police officer employed by Peel Regional Police and entitled to exercise authority as a peace office to lay a charge. Each individual was charged by way of summons, pursuant to the procedure set out in the POA ; Informations were sworn and the summonses were confirmed. 60 .

Even though there was no dispute as to the onus with respect whether the defendant had the permission of the occupier to enter when otherwise prohibited falls to the defendant, the Crown referred the Court to the decision in R. v. Clouston (Ont. Dist. Ct.) , to support that conclusion, and, further to support the view that, together with the provision of s. 47(3) of the POA , is constitutional. 61 . However, Court inquired with respect to the language from the original decision in R. v. Clouston relating to what the Crown is required to prove in respect of the alleged offence. Bolan D.C.

J. adopted the language from the trial judge, in ruling: In my view, His Honour Judge Langdon was correct in holding that the prosecution need not allege or prove an occupier once the three requisite elements are proved, namely: (

a) the defendant was not acting under a right or authority conferred by law; (

b) the defendant entered on the premises; (

c) entry was prohibited under the Trespass to Property Act . 62 . In the Crown’s view, the Court in Clouston was considering whether the Crown was required to prove the identity of the “occupier”, and, as such the language cited was not directly related to the point being considered by the Court. As a result, it is not determinative of the issue and not binding on this Court. 63 .

In respect of the defence argument that the Crown bears a burden of proving that the presence of each defendant is not by way of “a right or authority conferred by law” falls to the defendant, pursuant to s.47(3) of the POA , which reads “The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information.” 64 .

The Crown also relies on the findings in R. v. Asante-Mensah . 65 . The evidence confirms all the required elements of the charge(s), and conviction should be registered against all defendants. The Defence Position Voluntariness of the Statement of Tariq Shaikh 66 . First, the defence holds that evidence of statements made by Tariq Shaikh should be ruled involuntary and not admitted to the trial proper.

67 . In the defence view, Mr. Shaikh was clearly detained, and his detention was far in excess of what was contemplated by the Supreme Court in Suberu . Mr. Shaikh’s driver’s license was being held by the police officer. The officer had contacted the GTAA authorities for the purpose of having a GSO attend and determine whether the vehicle Mr. Shaikh was operating was subject to removal. In fact, Cst. Korosec acknowledged that he had positioned himself at the rear of the vehicle while awaiting the arrival of and investigation by the GSO.

While the defendant was not placed in handcuffs, he was – by any objective or subjective standard – compelled to remain until released by the officer. 68 . In addition, should Mr. Shaikh have elected to leave, he would have had to do so without his driver’s license, and then returned at a later time to retrieve it from the police detachment at the airport. 69 . In all the circumstances, the detention was far outside the parameters of what was contemplated by the Supreme Court in Suberu .

In Suberu , the Supreme Court confirmed the lower court ruling that, in the circumstances of that case, while there was no detention, concluding that what occurred “was preliminary investigative questioning falling short of detention”. As a result, no right to counsel was triggered. 70 . However, in this case, Mr. Shaikh was effectively detained. He had been approached by an officer who had substantial grounds for a belief that an offence had been committed. The officer took Mr. Shaikh’s driver’s license for identification purposes, and retained it throughout the interaction, which lasted over twenty minutes.

The officer had summoned the attendance of a GSO, to determine whether the vehicle associated with Mr. Shaikh was subject to removal, and positioned himself in such a way as to render departure by means of that vehicle impossible. The Merits of the Charges 71 . The defence position is complex, and can be characterized in several elements. 72 .

To start, the defence asserts that for conviction to register, the Crown is required to prove all material elements of the charge, including: A . the identity of the occupier, B . the identity of the defendant, C . date, time, location and municipal jurisdiction of the alleged offence D . whether the defendant was acting under any right or authority conferred by law, and E . that the defendant entered the premise without the express authorization of the occupier. 73 . The defence raises no issue with items in sub-paragraphs (a), (

b) and (

c) from paragraph 72. The defence raised issues with respect to onus under (

d) and (e). 74 . To begin, the defence accepts that the burden of proof with regard to any defence under sub-paragraph (

e) falls to the defence. However, in the defence view, the burden of proof with regard to the element set out in sub-paragraph (

d) falls to the Crown. 75 . The defence relies on the distinct difference in language and structure of the s.2(1), which reads “Every person who is not acting under a right or authority conferred by law and who, (

a) without the express permission of the occupier, the proof of which rests on the defendant, (

i) enters on premises when entry is prohibited under this Act…” 76 . The defence acknowledges that the burden of proof in sub-section (

a) is clearly enunciated and falls to the defence. There is no defence mounted in this regard. 77 . However, applying the rules of statutory

interpretation, the defence invites the Court to find that the express provision imposing the burden of proof attached to paragraph (

a) does not apply to the words in the main part of the section, specifically, “Every person who is not acting under a right or authority conferred by law”. In order to give effect to the statutory construction, the Court must find that the burden of proof with regard to whether the defendant was or was not “acting under a right or authority conferred by law” falls to the Crown, and that the Crown has failed to produce any evidence in this regard.

78 . Defence submits that there is a narrow range of right or authorities conferred by law. These would include attending for personal travel, to drop off a passenger (presuming the defendant is a private citizen, or a licensed taxi or limousine operator), to collect a passenger pursuant to a prior arrangement and in compliance with regulations requiring registration with the GTAA and payment of a specified fee), or, presumably, to collect a driver’s license surrendered in the course of an investigation, such as the one described earlier.

Not surprisingly, the defence is happy to adopt the language set out above from Clouston . 79 . In the defence view, an officer investigating a possible breach of the TPA is required to make inquiries of a suspected offender, to determine that no such authority exists. Only upon making those inquiries and satisfying him or herself as to the bona fides of any response would the officer proceed to charge a defendant. 80 . There is no evidence that such inquiries were made and in fact it is clear that they were not made. 81 .

Further, defence points to a combination of cases, to establish that the premises of the GTAA are federal lands – albeit under lease agreement to the GTAA ( Mississauga (City ) and GTAA, supra ). There are limits to the ability of any authority to restrict access to government property, and in particular this airport ( Committee for the Commonwealth v. Canada , supra . Further, the government and/or its agent cannot assert unfettered property rights over non-secure areas of such public lands. 82 .

As a result, when interpreting and applying the provisions of the TPA , the Court should do so in a limiting manner, as to maximize the benefits to citizens (at least in particular as it applies to public areas), and in order not to conflict with constitutional values. 83 . In addition, there is an element of male fides in the enforcement by the GTAA of any property rights under the TPA , where as it is demonstrated in these cases, it is really aimed at resolving another, long-standing problem, specifically the so-called “scooper” problem”.

In further support of this last element of the defence position, the defendants point to the close connection between enforcement of both the TPA and TLSARs , by both barring and banishing individuals and towing their vehicles. 84 . In addition, defence points out that there is another, more pertinent charge relating to this targeted problem, found in s.39.1 of the Highway Traffic Act , which reads: 39.1(1) A driver of a motor vehicle other than a bus shall not pick up a passenger for the purpose of transporting him or her for compensation where a licence, permit or authorization is required to do so by, (

a) the Public Vehicles Act ; (

b) a municipal by-law passed under

Part IV of the Municipal Act, 2001 ; (

c) a regulation made under the Department of Transport Act ( Canada ) ; or (

d) an airport or airport authority, except under the authority of such licence, permit or authorization. 2005, c. 26 , Sched. A, s. 4. The effort, in the defence view, to obtain convictions under the TPA is simply an effort to achieve what has not been achieved by prosecution under s.39.1(1) of the HTA . Defence provided no case law in support of this proposition. 85 .

As a further element of the male fides argument, defence submits that the Crown failed to disclose information about the lists prepared and maintained by the GTAA regarding individuals who had been issued notices under the TPA , along with vehicles associated with them. While such information was relied upon by both GSOs and police officers, there simply was no reference to it in the disclosed information. 86 . A final element of the defence claim of male fides is tied to what the defence claims is inappropriate seizure of the defendants’ vehicles, pursuant to TLSARs .

In the defence view, GSOs are granted discretion to determine whether to have a vehicle removed, but have been granted this discretion without policy or training guidance as to how to exercise this discretion. Relying on the quote repeated in Committee for the Commonwealth v.

Canada , and originating in the Prostitution Reference , which holds: It is essential in a free and democratic society that citizens are able, as far as is possible, to foresee the consequences of their conduct in order that persons be given fair notice of what to avoid, and that the discretion of those entrusted with law enforcement is limited by clear and explicit legislative standards (see Professor L. Tribe American Constitutional Law (2nd ed. 1988), at p. 1033). This is

especially important in the criminal law, where citizens are potentially liable to a deprivation of liberty if their conduct is in conflict with the law. the defence holds that exercise of discretion without appropriate policy and training leads to uncertainty as to the enforcement of the law, which is unconstitutional. 87 . Mr. Litkowski made no submissions with respect to the applicability of the findings in R. v. Asante-Mensah , and how they should be applied by this Court in arriving at the decisions in the current matters. 88 . As a result, the Court should dismiss the charges against the defendants.

The Court’s Analysis Voluntariness of the statement of Tariq Shaikh 89 . The statement, the admission of which the defence opposed, was a response to a question by Cst. Korosec as to what Mr. Shaikh was doing there at the time. It is indicated that the statement was taken after Mr. Shaikh had been identified by reference to his driver’s licence, which had been requested by Cst. Korosec, and, after, it is clear, Cst. Korosec had all the information he needed, to determine that he was in a position to charge Mr. Shaikh. 90 . Mr. Shaihk’s response was “You know, trying to get a fare.” Cst.

Korosec went on to comment “I haven’t seen you for a while”, and then asked “Have you been served lately?” To this, Mr. Shaikh replied “Yes”. 91 . In arriving at its decision as to whether to admit the statement alleged to have been made by Mr. Shaikh, the Court referred to Suberu , as well as its antecedents, as well as a contemporary decision by my brother Justice Quon, on a strikingly similar matter, as found in Toronto (City) v. Bednarski .

In that decision – which predates the decision in Suberu by a few days - HW Quon conducts a comprehensive and helpful analysis of an issue that seems to be arising with growing frequency in this Court, specifically the application of the Charter right to access to counsel and to be advised of this right upon detention an/or arrest. 92 . According to HW Quon, the issue is better addressed as two separate issues, the first being the issue of voluntariness, and the second having to do with the application of Charter rights.

He drew on principles set out in the cases leading up to Grant and Suberu and provides a practical approach to the issues of statements made by defendants.

In HW Quon’s view, a useful approach, as follows: [55] This blended voir dire involves two inquires: one relates to determining the voluntariness of the statement made by the defendant to a person in authority and the other inquiry concerns whether the statement, if voluntarily made, should be excluded under s. 24(2) of the Charter for infringing the defendant’s right to counsel under s. 10(b) . [56] More important, these two inquiries have different tests and burdens.

For the determination of whether the defendant’s written and oral statements were voluntarily made, the prosecution has the burden to prove the defendant make these statements freely and voluntarily to Officer Rodriguez beyond a reasonable doubt. If the defendant’s statements were not made voluntarily, then they will be automatically excluded. On the other hand, for the statement to be excluded on the basis of an infringement of the defendant’s right to counsel guaranteed under s. 10(

b) of the Charter , the defendant has to first prove there was an infringement of that right on a balance of probabilities and then prove on a balance of probabilities that the defendant’s statements should be excluded by the court under s. 24(2) of the Charter because its admission would bring the administration of justice into disrepute. 93 . In his decision, HW Quon sets out a helpful analytical framework, to determine whether to admit statements as voluntary, and, if so, to determine whether any Charter rights were infringed, prior to admitting such statements in evidence. 94 .

Based on the evidence as viewed through the usual analytic framework, the Court would find that the statement was made voluntarily, subject to one caveat. That has to deal with the question of onus. 95 . From one point of view, if the Crown’s argument that it is not required to prove whether the defendant was “not acting under a right or authority conferred by law”, then evidence about the reason for a defendant being on the premises when otherwise prohibited are irrelevant, the answers un-necessary and therefore inadmissible. This would foreclose the analysis.

96 . On the other hand, in the event the Court adopts the defence positions that the Crown is required to prove that the defendant was “not acting under a right or authority conferred by law”, then questions about the reason for being on site would be key to the ability to charging the defendant. In such a circumstance, the Court would then need to decide whether the defendant, being suspected of and therefore under investigation for a breach of a trespass notice is either required to answer any related questions posed by an investigating officer, or, alternately, given a caution. 97 .

According to the principle of use immunity enunciated in R. v. White , answers to questions should not be admissible where a defendant is required by law to provide information, where that very information is the basis upon which a subsequent charge is eventually laid. 98 . It is clear that there is no express duty on a suspect or defendant to provide information about the reason for their attendance on a premise from which they have been barred under the TPA . 99 . It is equally clear, in this case, that the investigating officer had more than ample grounds to believe that the defendant had committed an offence.

What is less clear is whether the defendant had been detained, however, in consideration of the totality of the evidence, the Court finds he had been. This conclusion arises from the fact that the officer was possessed of the information required to lay a charge. He had requested and received the defendant’s identification. He had requested the attendance of the GSO to determine whether the defendant’s vehicle was to be removed pursuant to a prior notice under TLSARs .

As a result, he had positioned himself in such a way as to make it almost impossible for the defendant to leave by means of the vehicle in which he had arrived. Although he was prepared to charge the defendant by way of summons, he was able to detain him and hold him for bail. The entire process lasted over twenty minutes, and while not a long time, it was hardly a minor interference with the activity of the defendant. 100 .

Alternately, based on the reasoning set out in Suberu and Bednarski , once an officer effects a detention and has decided that he or she has sufficient basis for charging an individual with an offence, his Charter rights to silence and the attendant right to advice of counsel are triggered. In this case, absent notice of this right to silence and to access advice of counsel, would render the statements inadmissible. 101 . In this context, the Court again adopts the language set out in Bednarski , that re-iterating the admonition in Singh , As Charron J. advised in R. v.

Jagrup Singh , a police officer would be wise to caution an individual if there are reasonable grounds to suspect the individual has committed an offence despite being detained or not. I pause to note that Singh refers to a passage from Rene Marin, in his text Admissibility of Statements (9th ed. (looseleaf)) , at pp. 2-24.2 and 2-24.3. The full excerpt from Marin reads: The warning should be given when there are reasonable grounds to suspect that the person being interviewed has committed an offence.

An easy yardstick to determine when the warning should be given is for a police officer to consider the question of what he or she would do if the person attempted to leave the questioning room or leave the presence of the officer where a communication or exchange is taking place. If the answer is arrest (or detain) the person, then the warning should be given. Cst. Korosec’s evidence is clear. In this case, had Mr. Shaikh sought to leave, he would neither have detained him nor pursued him. This is based, however, on his firmly held belief that Mr.

Shaikh would be found on premises again, thereby committing the same offence again, and that he would then have an opportunity to charge him for this instant offence. Together with the simple fact is that this is an arrestable offence and as such, Cst. Korosec had the authority to detain and arrest, a caution is appropriate. In preparing this component of its decision, the Court also referred to a decision of the British Columbia Court of Appear, in R. v. Reddy : [101] Whatever uncertainly may have existed with respect to those aspects of investigative detention had been swept away by Mann .

Although, as discussed by Mr. Justice Sopinka in Kokesch , instant knowledge of court decisions is not to be attributed to the police, they are expected to comply with those decisions within a reasonable time: at 33. What occurred in R. v. Brydges , 1990 CanLII 123 (S.C.C.), [1990] 1 S.C.R. 190 , is instructive. In that case, the Supreme Court held that, by reason of s. 10(

b) of the Charter , the police have a duty to advise a detainee of the existence and availability of legal aid plans and duty counsel. However, to give the police time to take the steps necessary to implement that decision the Court provided a 30-day transitional period: at 217. [102] I am not suggesting that 30 days is the outside limit with respect to the time within which the police are expected to bring their practices into conformity with pronouncements by the Supreme Court of Canada.

In Brydges , the Court was of the view that 30 days was “sufficient time for the police forces to react, and to prepare new cautions”. Other decisions may well take longer to implement such as, for example, where it is necessary for police forces to update their operations manuals, and provide training. However, in my view, 11 months was ample time for police officers to bring their investigative-detention practices into conformity with the dictates of Mann .

102 . The Court is mindful of the three part test set out in paragraph 71 of Grant , indicating how to assess whether any Charter breach is sufficiently egregious as to warrant exclusion: 71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2) , viewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence. 103 .

The head note to the decision of the majority clarifies this, by explaining: When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter infringing state conduct, (2) the impact of the breach on the Charter protected interests of the accused, and (3) society’s interest in the adjudication of the case on its merits.

At the first stage, the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right.

The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. At the third stage, a court asks whether the truth seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. Factors such as the reliability of the evidence and its importance to the Crown’s case should be considered at this stage. The weighing process and the balancing of these concerns is a matter for the trial judge in each case.

Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination. 104 . Applying the tests as above, the Court finds that the breach, although not intended, is serious.

Having regard to the comments in Reddy , the Court is of the view that the officer ought reasonably to have known the direction of the Courts in terms of cautioning defendants, and that the traditional distinction between detention and arrest no longer carried the same weight as it may have at an earlier time, even though the decision in Suberu had not yet been released by the date of the investigation into most of the charges before this Court. The Court is mindful that Cst.

Korosec’s almost mantra-like response to defence questions about whether he advised the defendant of his right to silence and to seek the advice of counsel that “he was not detained” was non-responsive, and could be taken by the Court as tacit acknowledgement that he knew he was wrong to have omitted the cautioned in respect of silence and right to access counsel. Otherwise, he would have provided his evidence in the straightforward manner expected of him, and properly allowed the Court to decide whether the defendant had been detained. 105 .

Further, while the defendant most likely knew that what he was doing was not permitted, he may not have made any admission, after being advised by counsel. As to society’s interest in having these matters adjudicated, it is clear that these matters have a long and certainly chequered history, they appear to consume tremendous resources and the issues need to be resolved.

However, given the Crown position that it is not required to prove the reason for the defendant’s attendance at the premise after being served a trespass notice, and that the Crown does not need to prove that the defendant was not there for a lawful purpose, then the evidence is not required for the Crown case. Weighing all these factors, the Court would rule that the evidence ought be excluded based on s.24(2) of the Charter . 106 . Before leaving this point, the Court also wishes to contrast the circumstances in this case with those reported at paragraph 86 in R. v.

Asante-Mensah , in which Hill J. found good reason to accept the evidence of the Crown witnesses, reporting “The two witnesses, in my view, gave their evidence respecting this incident, in a straightforward and frank manner without bias or embellishment.” 107 . By contrast, in this case, Cst. Korosec was far less compelling. In answers under examination in chief, he was forthright and unhesitating. Under cross examination, he appeared evasive, often indicating he did not understand what appeared to the Court to be straightforward questions. 108 .

Specifically in the course of the voir dire , his answers left much to be desired. For example, in chief, he advised that the interaction with Mr. Shaikh lasted “a few minutes”, and that the defendant could possibly have driven away had he elected to do so in the course of the investigation. Under further inquiry, however, he explained that he had positioned himself at the rear of the vehicle, making it impossible for the defendant to drive away without running the officer over. He then claimed that the defendant could leave

without his vehicle. And, finally, he acknowledged that the entire interaction had taken over twenty minutes. 109 . When asked if he had provided notice of the right to counsel, Cst. Korosec insisted he had not, claiming “the defendant had not been detained”, rather than simply saying “yes” or “no”. 110 . In all the circumstances, the Court was led to wonder about Cst. Korosec’s approach to giving his evidence. He was forthright and confident under direct examination but obstreperous and uncomprehending in regard to seemingly innocuous questions under cross examination.

He provided answers which allowed the Court to come to incorrect conclusions, only corrected after further inquiry. He was non-responsive, in respect of whether he had advice the defendant of his right to silence and to seek the advice of counsel. Clearly, this left the Court feeling that he was attempting to “shape the evidence” and had some motive other than the proper one of providing evidence to the Court upon which the Court would render decisions, and was – intentionally or not – suggesting a bias. Had credibility been an issue, his would have been wanting. 111 .

As a result, evidence proffered by the Crown as to the statements made by Mr. Shaihk are inadmissible, either because it is irrelevant or because it would be excluded pursuant to s.24(2) of the Charter . The Merits of the Charges 112 . Defence argues that the Court should take a purposive approach, consistent with constitutional and Charter values, in applying the requirements of s.2(1) (a)(

i) of the TPA .

The elements that the defence urges the Court to factor include: A . that the prosecution has failed to lead any evidence regarding whether the defendants had entered onto the premises pursuant to any right or authority conferred by law, B . that access to federal lands ought not be un-necessarily fettered, C . that the prosecution is malicious and in bad faith, based on i. there being an underlying motive unrelated to this prosecution (ie achieving what has not been achieved under the HTA ) ii. that the charges have served as a convenient mechanism for arguably seizure of vehicles, under TLSARs , iii. that TLSARs has been improperly applied, and iv. that the prosecution failed to provide full and fair disclosure 113.

For the reasons that follow, the Court finds that there is no basis in law for the arguments put forth by the defence, and rejects those arguments. 114. Dealing with the points in the order set out above, the Court accepts that while there is some benefit to reading the statutory provision in the manner suggested by the defence, s47(3) of the POA directs that the burden of proving a right or authority falls to the defence.

The Court recognizes that this means that some individuals acting under a right or authority may be unnecessarily charged and required to attend Court to have their vindication, the language of s.47(3) is clear. 115. As a starting point in its analysis, 20. The Court is mindful of the reference by the Ontario Court of Appeal in York ( Regional Municipality) v. Winlow , 2009 ONCA 643 (CanLII) , [2009] O.J. No. 3691, at paragraph 41 , in which the Court adopts a posture with respect to the rules of statutory

interpretation, specifically The exercise of determining the meaning of these words is an exercise in statutory

interpretation. Two key elements that guide a court's

interpretation of the words of a statute are context and legislative purpose. These two elements underlie Driedger's cardinal principle of statutory

interpretation, repeatedly endorsed by the Supreme Court of Canada: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. See, for example, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 (CanLII) , [2002] 2 S.C.R. 559 at para. 26 , quoting E.A. Driedger, Construction of Statutes (2nd ed. 1983). 116. The Court recognizes the decision Clouston , supra, the language of which seems unambiguous. However, given the extensive

argument in this case, and in particular in respect of the voir dire , sustaining the conclusion in Clouston leads to a legal dilemma that would render the provisions of the TPA meaningless, in the Court’s view. 117. The Court is also mindful of the potentially contrasting comments in R. v. Asante-Mensah, which in paragraph 133 reads: The accused further submitted that it infringed his

section 7 Charter right to have to establish in a prosecution for trespassing, that he was acting under a right or authority conferred by law and therefore was not a trespasser. It is section 47(3) of the Provincial Offences Act which places the burden of proving an authorization prescribed by law upon a defendant. This language expressly starts with the underlying proposition that the burden of proving that the defendant was not on the premises pursuant to a right or authority conferred by law falls to the defendant.

Once again, the issue being litigated was not upon whom the burden fell, but whether the requirement of proving that the person was not acting under a right or authority was a breach of a

section 7 Charter right. Again, while the comments therein may be seen as obiter dicta , they are informative in the context of the present decision. 118. If the Crown were required to prove that the defendant was not acting under a right or authority, an investigator would be required to ask about the reasons for attendance. However, given the decisions discussed above concerning voluntariness and statutory compulsion, then a defendant would either refuse to answer, or, if answering, would provide responses which would arguably be subject to use immunity. 119. The alternative approach is far more practical.

First of all, it avoids requiring the prosecution to prove a negative, and, more pointedly, a negative in relation to a range of possible explanations which is cannot possibly anticipate. 120. In that regard, it is the defendant who knows whether he or she is on a premise by reason of a right or authority conferred by law.

In the event that a defendant is subject to investigation, he or she can elect to advise the investigator of the lawful reason for being there, or, alternately, face being charged and then offering the defence at trial, where it can be tested and upon which an independent adjudicator will rule. 121. The Court notes that this is certainly on its face consistent with the prescripts of s.47(3) of the POA . Adopting reasons similar to those set out in R. v.

Moondi , unreported decision of this Court dated April 2, 2010, s.47(3) is not limited in scope to requiring a defendant to “prove the exception”; it is much broader, and expressly includes a need to prove “authorization” as well as “exemption or qualification prescribed by law. 122.

On the basis of the foregoing, therefore, the Court finds that the reading of the provision that is most harmonious with the structure of the statute and consistent with the ordinary meaning of the words is that the words found in the opening words of s.3(1) of the TPA amount to an “authorization” or “qualification”, and reliance thereupon falls to the defence. 123. While this may seem inconsistent with the ruling in Clouston , the cases can be distinguished as the Court in Clouston was determining whether the Crown was required to prove the identity of the “occupier”.

The comments in Clouston , supra, while helpful and challenging, are therefore by way of obiter dicta , and not binding on this Court. 124. As to further legs of the defence argument, the Court, while accepting the principle set out in Committee for the Commonwealth v. Canada that access to federal lands ought not be unreasonably fettered , also recognizes that that decision in addressed an alleged Charter infringement, relating to expression of free speech. This case is clearly distinguishable, as it deals with commercial interests and not Charter protected rights. 125.

This view is further endorsed by the comments of Hill, J in R. v. Asante-Mensah which in paragraph 122 considers the disposition in Committee for the Commonwealth v. Canada and indicates: In the context of the constitutionally protected right of freedom of expression, there have been expansive judicial statements that the government must act in a manner, consistent with constitutional values, in the exercise of limiting rights over its airport property which is a forum imbued with many characteristics associated with public places: The Queen v.

Committee for the Commonwealth of Canada , 1991 CanLII 119 (SCC) , [1991] 1 S.C.R . 139 at 154-155 per Lamer C.J., at 192-200 per L'Heureux-Dubé J., at 230-233 per McLachlin J. The Act contemplates revocation at will of the licence to attend. The Committee for the Commonwealth of Canada decision recognizes that the more an owner, for its advantage, opens up its property for use by the public in general, the more the owner's rights become circumscribed by the statutory and constitutional rights of those who use the property.

126. That said, Justice Hill went on to say: “There is no freedom, however, which confers a right to make any use of another's property, including that of the government.” 127. Finally, the argument fails to persuade Justice Hill that the decision in Committee for the Commonwealth v. Canada compels him to find that the occupier was acting in any constitutionally invalid manner: Sections 2 and 3 of the [ Trespass to Property] Act are not, facially, unconstitutionally broad on account of their general application to private and governmental occupiers.

The statute's scope of broad and general application is contoured to address the infinite variety of causes which might arise to trigger an occupier to exercise discretion to exclude. 128. Further, to the extent that the defendants believe that their rights of access have been unreasonably or improperly abridged, there are other remedies available, which do not include breach of Provincial law. There is no evidence that such remedies have been sought. 129.

For these reasons, the Court rejects any argument that the prosecution must fail because the occupier has improperly sought to fetter access to lands in the public domain. 130. As to the bad faith argument, a fundamental underpinning of this claim is the removal of the vehicles of the defendants, pursuant to TLSARs . There are two main elements to this claim: first that GTAA agents have been given no direction or instruction on how to interpret and apply its provisions, nor any parameters within which to exercise any discretion they have, thus rendering any

interpretation unreasonable; and, further, that the Regulation requires identification of specific vehicles associated with a prior entry that has triggered a trespass notice and not any vehicle associated with that defendant. 131. As to the first leg of that argument, it appears that there is a GTAA policy. Neither Crown nor defence introduced this policy in evidence. There is no evidence other than that of one or two officers as to their understanding of the scope of their discretion on how to enforce the relevant provisions.

In order for the court to rule that there is insufficient policy or training in support of that policy, the Court would require direct, compelling evidence of the inadequacy of both the policy and related training on how to exercise any available discretion. What little evidence there is, is equivocal at best and insufficient to base this leg of the claim. 132. The Court distinguishes this conclusion from the findings in Committee for the Commonwealth v. Canada upon which the defence relied. In Committee for the Commonwealth v.

Canada , the Court held that there must clear and explicit legislative standard for exercise of discretion by law enforcement officials. However, that case addressed exercise of “fundamental rights”, in that case, freedom of expression. There is no such right being claimed here. 133. GRO’s authority for removing vehicles is set out in TLSARs , which is permissive – that is, permits airport operators to remove vehicles where there has been notice prohibiting that vehicle from entering or parking on airport property. The Regulation does not run afoul of Charter principles.

Further, apart from the application of the Regulations to these offences, there is no suggestion that exercise of the authority to remove infringed upon or even dampened others rightful enjoyment of fundamental freedoms on the subject property. 134.

As to the further claim that the application of the policy is incorrect by virtue of the difference between the requirement set out in TLSARs – which requires notice of prohibition with respect to specific vehicles – and the actual notice which indicates that ANY vehicle associated with a banned person will be subject to removal, again the Court is of the view that there is another, more appropriate remedy for this.

Absent any evidence that such remedies have been sought and, potentially, the result of such efforts, it would be improper for this Court to rely on that argument as a basis for interpreting this statute in the manner requested by the defence. 135. On the further claim that those responsible for these charges are simply trying to do what they have failed to do under s.39(1) of the Highway Traffic Act , the defence has provided no case law to indicate that this is a viable defence.

Clearly, pursuant to the principle set out in Kienapple , a person cannot be successfully prosecuted twice for the same actus reus , however, that does not prevent prosecutors from proceeding against a defendant under varying attacks, and electing which will best serve the public interest in the course of or at the conclusion of prosecution.

Indeed, Laskin J, in writing for the majority, stated: Parliament's power to constitute two separate offences out of the same matter is not in question, but unless there is a clear indication that multiple prosecutions and, indeed, multiple convictions are envisaged, the common law principle expressed in the Cox and Paton case should be followed.

136. On the final point that the prosecution failed to fully or properly disclose evidence, the Court notes that the defence did not bring any motion in the course of the proceedings to require Crown to produce the missing documents. While both sides seemed to be of the view that the records may have been destroyed and/or overwritten, there is no clear evidence to that effect. In any event, Crown holds that it is not required to disclose the documents, as the material evidence is the content of those reports and not their mere existence.

Crown argues by analogy to the CPIC system; it is not required to disclose what is set out in CPIC but only the evidence upon which CPIC records are established. It has done so in this case. 137. While the Court believes it would have been preferable for Crown to disclose the documents, however, given that there was no motion to produce brought before the Court and no effort to determine with certainty whether the documents could be reproduced, and, further, that the underlying facts which form the basis of the reports was entered as evidence before the Court, this leg of the argument cannot succeed. 138.

The Court does note that the Crown seemed surprised by its witnesses’ references to the existence of these documents. While this may be excused with respect to those witnesses employed by GTAA, it is highly irregular with respect to police witnesses, who, in the Court’s view, should have been more forthcoming in the circumstances of this prosecution. 139.

In the event that a motion for production of the documents had been made, the Court would have been compelled to consider, in sequence, whether such documents were produceable, if so, were they available, and, further, if so, whether the appropriate remedy would be to grant a defence motion for adjournment to consider the impact of the newly disclosed documents on their case. A stay would only be an extraordinary remedy available to the Court after all other avenues are exhausted, and not justifiable on the basis of the information before the Court. 140.

For the reasons, therefore set out above, the Court finds that the Crown has proven that each of the defendants had been advised that their presence on the airport grounds was not permitted, that the defendants each returned after receiving such notice, that there is no evidence of the defendants having permission of the occupier to do so (indeed, to the contrary, they having been advised that they were not permitted to do so, and that they were not otherwise there pursuant to a right or authority conferred by law. 141.

For these reasons, convictions enter on all counts. signed Donald Dudar Justice of the Peace 1. The Court notes that the decision in R. v. Asante-Mensah was the subject of appeals up to the level of the Supreme Court. However, the issues in appeal bear no impact on the references set out in this decision, and the Court’s reliance on these comments and principles.