



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hobeika, 2020 ONCA 750

DATE: 20201126

DOCKET: C64993 & C65025

Doherty, van Rensburg and
    Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michel Hobeika and Nelson
    Sanchez

Appellants

Gregory Lafontaine, for the appellant
    Hobeika

Anthony Marchetti, for the appellant
    Sanchez

Jeanette Gevikoglu and Christina
    Malezis for the respondent

Heard: September 28, 2020 via
    teleconference

On appeal from convictions entered on November
    9, 2017 by Justice S.F. Dunphy of the Superior Court of Justice, reported at
    2017 ONSC 6475, and on appeal from the sentences imposed on February 26, 2018,
    reported at  2018 ONSC 1293, 1294.

Doherty J.A.:



I



overview

[1]

On September 16, 2013, the police searched two
    condominium units, one in Liberty Village (the Liberty Village condominium),
    and the other in Etobicoke (the Etobicoke condominium). The appellant,
    Hobeika, was connected to both. The appellant, Sanchez, was arrested in the
    Etobicoke condominium at the time of the search. The police also searched
    Hobeikas vehicle, located in the parking lot outside of the Etobicoke
    condominium. Hobeika and another person were in the vehicle when it was stopped
    and searched.

[2]

The police found an assortment of drugs in both
    condominiums and the vehicle. They also located significant amounts of cash in
    both condominiums. Subsequent police investigation led to the seizure of funds from
    Hobeikas bank accounts and other locations. In total, the police seized about
    $400,000 in cash and bank drafts.

[3]

Hobeika and Sanchez were charged with four
    counts of possession of controlled substances for the purposes of trafficking.
    Each count referred to a different drug. Hobeikas charges were based on drugs
    seized from both condominiums and the vehicle. Sanchezs charges related only
    to drugs seized from the Etobicoke condominium. Hobeika also faced three counts
    of possession of money he knew to be the proceeds of crime and one count of
    money laundering.

[4]

The trial judge convicted the appellants on all
    counts. He sentenced Hobeika to 8½ years with 227 days credit for presentence
    custody. He sentenced Sanchez to 4½ years with a small credit for presentence
    custody.

[5]

With one small exception, the trial judge
    ordered the forfeiture of all cash found to have been in Hobeikas possession. The
    trial judge also ordered the forfeiture of the Etobicoke condominium owned by
    Hobeika. He concluded the condominium was offence-related property and
    declined to grant relief from forfeiture.

[6]

Both appellants appeal conviction and sentence. I
    would dismiss the appeals.


II



the conviction
    appeals

[7]

Hobeika alleges violations of his rights under
    s. 8 and s. 10(b) of the
Charter
.
[1]
Hobeika contends the searches of the Liberty Village condominium and the
    Etobicoke condominium violated his s. 8 rights. He makes the same submission
    with respect to the search of his vehicle. Hobeika further submits the police
    violated his rights under s. 10(b) when they did not facilitate his contact
    with counsel for over four hours after he was arrested and had asserted his right
    to counsel. Hobeika contends the constitutional violations justify the
    exclusion of all, or at least some, of the evidence proffered against Hobeika.

[8]

On his conviction appeal, Sanchez submits the
    police infringed his rights under s. 8 of the
Charter
when they
    entered and searched the Etobicoke condominium. He argues the evidence of the
    drugs found in that search should be excluded under s. 24(2). Without that
    evidence, Sanchez must be acquitted.

[9]

In his factum, Sanchez argued the evidence could
    not reasonably support a finding Sanchez was in possession of the drugs found
    in the Etobicoke condominium. Counsel did not make oral argument in support of
    this submission. I do not propose to address it in these reasons. It is
    sufficient to say the trial judges analysis of the evidence and his findings
    fully support his conclusion Sanchez was in possession of some, but not
    necessarily all, of the drugs found in the Etobicoke condominium: see
R. v.
    Hobeika
, 2017 ONSC 6475, at paras. 44-48.

A.

the section 8 arguments

[10]

The appellants s. 8 arguments focus mainly on
    the warrantless entry and search of the Etobicoke condominium. They do,
    however, raise other s. 8 arguments. A somewhat detailed review of the evidence
    is necessary to understand those arguments. My summary borrows heavily from the
    trial judges reasons on the
Charter
application: 2017 ONSC 6066 (
Charter
Reasons)

[11]

In early September 2013, a confidential informant
    (CI) advised the police Hobeika was selling various drugs out of his car and
    the Liberty Village condominium, where he lived. The CI had purchased drugs
    from Hobeika at that location. The CI was well known to the police and had
    provided reliable information in the past.

[12]

On September 13, 2013, after investigating and
    confirming some of the information provided by the CI, the police obtained
    search warrants for the Liberty Village condominium and Hobeikas vehicle. Armed
    with the warrants, the police set up surveillance at the Liberty Village
    condominium, hoping to execute both warrants when Hobeika was in the
    condominium. He did not appear and the police obtained an extension of the warrants
    to September 15, 2013.

[13]

On September 15, 2013, the police again set up
    surveillance at the Liberty Village condominium. The police had information the
    vehicle owned by Hobeika was registered to a unit in the Etobicoke condominium.
    Officers were sent to that location to try to locate Hobeikas vehicle. They
    found the vehicle in the parking lot of the Etobicoke condominium at about 8:23
    p.m.

[14]

One of the officers checked the directory inside
    the front door of the Etobicoke condominium building and learned Hobeika was
    listed as the occupant of one of the units. The officer in charge of the
    investigation, who had considerable experience in drug investigations,
    concluded Hobeika may be operating his drug business out of both the Liberty
    Village condominium and the Etobicoke condominium. At about 8:30 p.m., he advised
    the officer, who had prepared the affidavit (ITO) on the application for
    search warrants on the Liberty Village condominium and Hobeikas vehicle, to prepare
    an ITO requesting a warrant on the Etobicoke condominium.

[15]

The police continued to gather more information
    as they waited outside of the Etobicoke condominium. The police received
    information that a person, who lived in the Etobicoke condominium building, had
    been charged with drug trafficking in 2011. That person had been released on
    bail with Hobeika as his surety. Under the terms of the bail order, this person
    was obliged to live in Hobeikas unit. The police passed this information on to
    the officer preparing the ITO.

[16]

Additional officers arrived outside of the
    Etobicoke condominium. The officer in charge decided that, if Hobeika left the
    condominium and went to his car, the police would stop the vehicle and execute
    the search warrant for the car.

[17]

At 9:45 p.m., Hobeika and another person were seen
    leaving the Etobicoke condominium and going to Hobeikas vehicle. When Hobeika
    entered the vehicle, the officer in charge ordered the vehicle blocked and
    instructed the officers to execute the search warrant for the vehicle. The
    officers who stopped the vehicle smelled marihuana in the car and saw, what
    appeared to be, a significant quantity of marihuana in the pocket of the front
    door. The officers also found drugs in the possession of the passenger in Hobeikas
    car. They arrested Hobeika on a charge of possession of marihuana and advised
    him of his right to counsel.

[18]

The stopping of Hobeikas vehicle and his arrest
    occurred in plain view of the entrance to the Etobicoke condominium. The arrest
    was loud and public. Hobeika had a cellphone. At least three individuals exited
    the Etobicoke condominium while the stop and arrest were taking place. They
    were seen using their cellphones. One person immediately went back into the
    building.

[19]

Although the police had not yet obtained a
    warrant for Hobeikas condominium unit, the officer in charge decided the
    police would enter the condominium building, proceed to Hobeikas unit and make
    a warrantless entry. He was satisfied the police had reasonable grounds to
    believe there was evidence of narcotics trafficking in Hobeikas unit and there
    was a real risk evidence would be destroyed if he did not act immediately to
    enter the condominium and Hobeikas unit.

[20]

Three officers entered the common area of the
    condominium building using the key fob seized from Hobeika when he was
    arrested. They made their way to the condominium unit occupied by Hobeika. They
    could hear someone inside. The officer in charge knocked on the door to the
    unit and identified himself as a police officer, falsely indicating he was
    there to perform a bail compliance check. The officer heard steps in the unit
    moving away from the door. The officers broke the door open with a battering ram
    and entered the unit.

[21]

The three officers entered the unit and spread
    out, conducting a quick visual examination of the premises to locate any
    persons who were present in the unit. During the clearing of the unit for
    safety purposes, one of the officers saw, what appeared to be, chunks of
    cocaine powder and a number of Ziplock baggies.

[22]

The appellant, Sanchez, was sitting at a table
    beside a jar containing what appeared to be psilocybin. The police arrested
    Sanchez and advised him of his right to counsel. They froze the scene to
    await the arrival of the search warrant. The officer in charge advised the
    officer preparing the ITO of the observations made in the condominium unit. The
    officer put that information in the ITO.

[23]

The police obtained a warrant for Hobeikas unit
    in the Etobicoke condominium and executed that warrant shortly after midnight.
    The search revealed a substantial quantity of various narcotics, in addition to
    those seen by the officers who had entered the condominium. The police also
    found cash in the condominium.

[24]

While the police were executing the warrant on
    the Etobicoke condominium, another group of officers executed the warrant on the
    Liberty Village condominium. They located substantial quantities of narcotics
    and a large amount of cash.

[25]

The police subsequently obtained additional
    search warrants and production orders. I do not propose to detail either the
    obtaining or execution of those warrants and orders. The police recovered large
    amounts of cash and two bank drafts, all of which the Crown alleged were the
    proceeds of Hobeikas drug trafficking operation.

(i)

Did the search of the Liberty Village
    Condominium and Hobeikas Vehicle Violate Section 8 of the
Charter
?

[26]

In his factum, counsel for Hobeika submitted the
    information attributed to the CI did not provide grounds upon which a justice,
    acting judicially, could issue search warrants for the Liberty Village
    condominium and Hobeikas vehicle. Counsel did not make this argument in oral
    submissions.

[27]

The warrants for the searches of the Liberty
    Village condominium and Hobeikas vehicle were issued based on information
    provided by the CI. The trial judge examined that information through the lens
    of the controlling case law, most notably
R. v. Debot
, [1989] 2 S.C.R.
    1140; see also
R. v. Herta
, 2018 ONCA 927, at paras. 20-21:
Charter
Reasons
, at paras. 45-73. He concluded
    that information provided a basis upon which the justice could issue the
    warrant. I see no error in his analysis and no value in repeating it here. The
    trial judge correctly held the CIs information provided a basis upon which the
    warrants could issue.

[28]

Counsel made a second attack on the warrant
    issued for the Liberty Village condominium. He submitted, even if the ITO
    provided a basis for the issuance of the warrant, by the time the police went
    to execute the warrant, they had good reason to believe Hobeika resided in the
    Etobicoke condominium and not in the Liberty Village condominium, as the CI had
    indicated. Counsel contends this additional information should have led the
    police to conduct further investigations before executing the warrant on the
    Liberty Village condominium. Counsel argues the decision to execute the warrant
    in the face of uncertainty as to Hobeikas place of residence made the search
    of the Liberty Village condominium unreasonable.

[29]

The police knew when they obtained the warrant
    for the Liberty Village condominium, Hobeika had some connection to the
    Etobicoke condominium. They were aware his car registration showed the
    Etobicoke condominium as his residence. The police included that information in
    the ITO used to obtain the warrant for the Liberty Village condominium. The
    police also had direct information from the CI that Hobeika resided at the
    Liberty Village condominium and sold drugs out of that location. The CI did not
    connect Hobeika to the Etobicoke condominium.

[30]

By the time the police executed the Liberty
    Village condominium warrant, they had much more information connecting Hobeika
    to the Etobicoke condominium and additional information indicating Hobeika was
    a drug dealer. None of that information, however, contradicted the CIs
    information relating to the Liberty Village condominium. If anything, the
    additional information buttressed the CIs credibility by providing further
    evidence Hobeika was a drug dealer. Simply because Hobeika sold drugs out of
    one condominium in which he resided did not mean he did not conduct the same business
    out of another condominium in which he also resided. Drugs can be readily
    stored and moved from one place to another. Nor is it unusual for a commercial
    dealer to have more than one retail outlet: see
R. v. Nguyen
, 2015
    ONCA 753, at para. 34.

[31]

The evidence gathered by the police indicating
    Hobeika was residing at and trafficking out of the Etobicoke condominium did
    not contradict the evidence the police had connecting him to drug trafficking activity
    in the Liberty Village condominium. The additional information gained by the
    police in respect of the Etobicoke condominium was no reason to delay executing
    the warrant for the Liberty Village condominium.

[32]

The search warrant for the Liberty Village
    condominium was lawful and the search was conducted in a reasonable manner.
    There was no s. 8 breach. I do not understand counsel to make any separate
    arguments about the warrant for the search of Hobeikas vehicle. That search
    was lawful and did not violate Hobeikas s. 8 rights.

(ii)

The search of the Etobicoke condominium

[33]

As described above, the police entered the
    Etobicoke condominium building and Hobeikas unit without a warrant. They
    performed a safety sweep and secured the premises to await the warrant. When
    the warrant arrived, the police conducted a full search.

[34]

The Crown acknowledges that warrantless searches
    are
prima facie
, unreasonable and unconstitutional: see
R. v.
    Collins
, [1987] 1 S.C.R. 265, at 278. The Crown submits, however, the
    entry and safety search, although warrantless, was authorized under s. 11(7)
    of the
Controlled Drugs and Substances Act
, S.C. 1996
, c. 19, as amended, (CDSA). That section
    provides:

A police officer may exercise any of the
    powers described in subsection (1), (5) or (6) without a warrant if the
    conditions for obtaining a warrant exist, but by reasons of exigent
    circumstances it would be impracticable to obtain one.

[35]

The constitutionality of s. 11(7) is not
    challenged. A search is authorized under that provision if two prerequisites
    exist. First, the conditions for obtaining a warrant must exist at the time
    the warrantless entry and search are conducted. Second, it must be
    impracticable to obtain a warrant by reasons of exigent circumstances:
R.
    v. Grant
, [1993] 3 S.C.R. 223, at 243;
R. v. Paterson
, 2017 SCC
    15, at paras. 32-37;
R. v. Phoummasak
, 2016 ONCA 46, at para. 12; see
    also:
R. v. Kelsy
, 2011 ONCA 605, at paras. 25-27.

[36]

The first requirement, sometimes referred to as
    the probable cause requirement, is determined by asking whether the police had
    adequate grounds to obtain a warrant to search the location they entered
    without a warrant. That assessment is made based on the facts the police knew
    or reasonably should have known when the entry was made: see
R. v. Cornell
,
    2010 SCC 31, at paras. 20, 23; see also
R. v. Lichtenwald
, 2020 SKCA
    70, at paras. 37-45.

[37]

The police made two entries, first into the
    common area of condominium, and second, into Hobeikas unit. In the
    circumstances of this case, it would be artificial, for the purposes of
    determining whether the police had probable cause, to draw a distinction
    between the common area of the Etobicoke condominium and Hobeikas unit. The
    officer in charge had decided to enter the common area for the purpose of proceeding
    directly to Hobeikas unit, where a warrantless entry would be effected. I
    think the trial judge correctly concluded the police could only rely on s.
    11(7) of the CDSA if they had probable cause to enter Hobeikas unit when they
    entered the common area of the condominium on their way to Hobeikas unit:
Charter
Reasons
, at para. 107. The police could
    not rely on information gained when standing outside of Hobeikas door to justify
    the warrantless entry.

[38]

The trial judge reviewed the relevant evidence
    at length:
Charter
Reasons
,
    at paras. 89-106. The evidence relied on by the trial judge included:

·

information from a reliable CI identifying
    Hobeika as a full-time, busy and mobile drug dealer, who always had product
    readily available;

·

evidence connecting Hobeika to the Etobicoke
    condominium. This included his designation as the occupant in the building registry,
    his licence and car
ownership, showing the Etobicoke condominium as his residence, his
    possession
of the key fob for the front entry to the
    condominium, and his vehicle having been parked in the parking lot beside the condominium;

·

evidence that when Hobeika was arrested
    immediately after leaving the Etobicoke condominium, he was in possession of
    drugs. More drugs were found in the car, and in the possession of the passenger.
    It could safely be inferred Hobeika and his passenger had just left Hobeikas
    unit; and

·

a third party, who also lived in the Etobicoke
    condominium building, had been charged with drug trafficking about two years
    earlier. Under the terms of his bail, he was required to live in Hobeikas
    unit.

[39]

The appellants submit the information provided
    by the CI had no relevance to the existence of reasonable grounds to enter the
    Etobicoke condominium because the information provided by the CI did not
    connect Hobeikas drug trafficking activity to the Etobicoke condominium. The
    appellants would have a valid point if the information from the CI was the only
    information available to the police. However, the CIs information was part of
    a broader picture. The information from the CI, combined with the information
    connecting Hobeika to the Etobicoke condominium, and the evidence linking
    persons, including Hobeika, who lived in, or had just left the Etobicoke
    condominium, to drug possession and trafficking, provided ample grounds for the
    formation of a reasonable belief that evidence of drug trafficking would be found
    in the Etobicoke condominium.

[40]

The trial judge did not err in holding the
    probable cause component of s. 11(7) was satisfied when the police entered the
    Etobicoke condominium and Hobeikas unit in the condominium without a warrant.

[41]

The appellants also challenge the trial judges
    finding on the urgency component of s. 11(7) of the CDSA. They contend the
    police failed to show the requisite urgent circumstances justifying the
    warrantless entry of the condominium and the subsequent entry and search of
    Hobeikas unit. In addition, the appellants argue whatever urgency existed was
    created by tactical decisions made by the police and cannot be relied on by the
    police to make out the urgency required to justify a warrantless entry, based
    on exigent circumstances.

[42]

The meaning of exigent circumstances, for the
    purposes of s. 11(7), was explained in
Patterson
, at paras. 36-37:

So understood, then, impracticable within
    the meaning of s. 11(7) contemplates that the exigent nature of the circumstances
    are such that taking time to obtain a warrant would seriously undermine the
    objective of police action  whether it be preserving evidence, officer safety
    or public safety.

In sum, I conclude that, in order for a
    warrantless entry to satisfy s. 11(7), the Crown must show that the entry was
    compelled by urgency, calling for immediate police action to preserve evidence,
    officer safety or public safety. Further, this urgency must be shown to have
    been such that taking the time to obtain a warrant would pose serious risk to
    those imperatives.

[43]

The urgency component of s. 11(7), as described
    in
Patterson
, was made out if, when the officer in charge decided to enter
    the building, proceed to Hobeikas unit and make a warrantless entry, he reasonably
    believed the circumstances called for immediate action to preserve evidence in
    Hobeikas unit, and reasonably believed waiting for a warrant would put the
    preservation of that evidence at serious risk. The second belief will often follow
    from the first: see
Patterson
, at para. 37;
Kelsy
, at paras.
    26-30;
Phoummasak
, at para. 12.

[44]

The trial judge found the location and nature of
    the stopping of Hobeikas vehicle and his arrest made it reasonably probable Hobeikas
    arrest could quickly come to the attention of a person or persons in Hobeikas condominium
    unit, or with quick access to his unit. Those persons could destroy evidence in
    the unit before the police could obtain and execute a search warrant:
Charter
Reasons
, at paras. 111-16.

[45]

The appellants challenge this conclusion,
    arguing there was no evidence  the police knew someone was in Hobeikas unit
    or had immediate access to it. Section 11(7) of the CDSA did not require that
    the police have actual knowledge someone was in, or could readily access the
    unit. Instead, it required the police have reasonable grounds to believe there
    was an imminent risk that evidence in the unit would be destroyed before the
    police could obtain and execute a warrant. The evidence accepted by the trial
    judge included evidence a person released on bail for drug trafficking was
    required to live in Hobeikas unit as a term of his bail. While it is true the
    bail order was about two years old, the officers had no reason to believe it
    was not still in effect. That evidence provided a basis for the trial judges
    finding of an imminent risk that evidence in the unit could be destroyed. This
    court must show substantial deference to that factual finding:
Cornell
,
    at para. 25.

[46]

In support of his argument that the police had
    no basis to believe anyone might be in Hobeikas unit, counsel for Sanchez
    submits the police were not entitled to rely on the voices they heard coming
    from Hobeikas unit when they were standing in the hall outside of that unit.
    Counsel submits the unlawful presence of the police in the common area outside
    of Hobeikas unit infringed Hobeikas reasonable expectation of privacy.
    Consequently, argues counsel, the police cannot rely on any information
    obtained while they were in the hall to justify the warrantless entry into the
    unit.

[47]

This argument assumes the urgency requirement
    under s. 11(7) of the CDSA was not satisfied when the police decided to enter
    the Etobicoke condominium, proceed to Hobeikas unit, and enter the unit. The
    trial judge found to the contrary. He concluded the requisite urgency was
    established before the police entered the building:
Charter
Reasons,
    at para. 122. Consequently, he did not have to decide whether the police could
    rely on the additional information gained at Hobeikas door.

[48]

I will assume the appellant is correct in
    arguing the police could not rely on what they heard through Hobeikas door. On
    the trial judges findings, which I accept, the requisite urgency existed when
    the police entered the building. The voices at the doorway served to confirm
    the urgency and also provided justification for the forced entry into the unit.

[49]

The appellants next argue the existence of what
    would otherwise amount to exigent circumstances will not justify a warrantless
    entry if those circumstances were the consequences of a pre-planned police
    operation. I agree. The police cannot circumvent the warrant requirement by devising
    and implementing a strategy which creates an imminent danger evidence will be
    destroyed, and then rely on that imminent danger as justification for acting
    without a warrant. If the police strategy creates the supposed urgency, the
    circumstances are not exigent, but are anticipated, if not planned for, by the
    police:
R. v. Silveira
, [1995] 2 S.C.R. 297, per LaForest J. in dissent,
    at paras. 49-53, 84-86;
Phoummasak
, at paras. 15-18.

[50]

The appellants submit the decision to execute
    the search warrant on the vehicle and arrest Hobeika in plain view of the
    entrance to the Etobicoke condominium created the risk that evidence of drug
    trafficking in Hobeikas unit could be destroyed before the police could
    execute a warrant. This was the very risk the police relied on to act without a
    warrant. The appellants argue the police had readily available operational alternatives
    that would have avoided stopping and arresting Hobeika in front of the
    Etobicoke condominium. For example, the appellants submit the police could have
    allowed Hobeika to drive out of sight of the Etobicoke condominium before
    stopping the vehicle, executing the warrant on the vehicle, and eventually
    arresting Hobeika.

[51]

The trial judge considered and rejected this
    argument:
Charter
Reasons
,
    at paras. 125-32. On the evidence accepted by the trial judge, the police had
    no intention of searching Hobeikas vehicle in front of the Etobicoke
    condominium until Hobeika left his unit and entered the vehicle. Up to that
    point, the police had maintained surveillance, waiting for the anticipated
    warrant for Hobeikas unit. Just as with the Liberty Village condominium, the
    police wanted to execute the warrant on the Etobicoke condominium while Hobeika
    was in the unit.

[52]

The officer in charge changed the plan when
    Hobeika left the Etobicoke condominium and headed for his car. He was
    cross-examined about his decision to execute the warrant on Hobeikas vehicle
    before it left the Etobicoke condominium parking lot. The officer in charge explained
    why, in his opinion, the other options suggested by defence counsel were not
    safe or feasible. The trial judge declined to second-guess what he viewed as a reasonable
    operational decision made by the officer in charge. In doing so, the trial
    judge followed the direction of the Supreme Court of Canada in
Cornell
,
    at paras. 24, 36.

[53]

The appellants submission the police
    effectively created the urgency relied on to act without a warrant rests on two
    propositions. First, the appellants equate the existence of a causal link
    between the circumstances said to create the need to act without a warrant and a
    police operational decision, with a finding the police effectively created the
    urgency. Second, the appellants contend the existence of reasonable alternative
    operational decisions must mean the police created the urgency flowing from the
    decision they did make.

[54]

I find neither argument persuasive. A causative
    link between the circumstances creating the urgency relied on to act without a
    warrant and a police action is a step towards showing the police created the
    urgency. In many cases, however, it will be a small step. Often, police action
    will result in the urgency relied on to act without a warrant. The question is
    not whether there is some causative link between police action and the urgency,
    but rather whether that police action reflects a pre-existing plan, which
    included the creation of the circumstances said to justify acting without a
    warrant.

[55]

Evidence the police could have proceeded in a
    different manner may also have evidentiary value when assessing whether the
    alleged exigent circumstances were created by the police. The availability of a
    different strategy does not, however, mean that the police created the alleged
    urgency. The question is not could the police reasonably have done something
    else, but whether the police operational plan would, in its implementation,
    create the very circumstances said to justify acting without a warrant.

[56]

On the evidence accepted by the trial judge, the
    police did not engage in a pre-planned operation that would create
    circumstances in which the police could act without a warrant. This police
    operation took a turn on the evening of September 15. Until then, the police intended
    to execute a warrant at the Liberty Village condominium when the appellant was
    there. On the evening of September 15, the focus shifted to the Etobicoke
    condominium, after the police had good reason to believe Hobeika was in that
    unit. The plan, however, remained fundamentally the same. The police intended
    to obtain a search warrant and execute the warrant while Hobeika was in the
    condominium.

[57]

The plan, however, changed again when Hobeika
    left the condominium before the warrant was obtained. The police reacted to
    this turn of events by choosing to execute the warrant on the vehicle, detain
    and subsequently arrest Hobeika. Unlike the police operation described in
Silveira
,
    by LaForest J., at para. 85, the police did not choose to structure their
    operation so as to arrest Hobeika outside of the Etobicoke condominium. The
    detention of Hobeikas vehicle and his arrest cannot fairly be described as
    planned in advance  in a planned and calculated procedure:
Silveira
,
    at para. 85.

[58]

The police were actively involved in obtaining a
    warrant when Hobeika left the Etobicoke condominium. From the police
    perspective, their strategy changed in reaction to a new situation, albeit one
    the officer in charge had contemplated as a possibility while awaiting the
    warrant. The change in circumstances, and not any pre-existing police plan, generated
    the exigent circumstances relied on for the warrantless entry.

[59]

I see no error in the trial judges analysis.
    Section 11(7) of the CDSA authorized the warrantless entry.

(iii)

The validity of the warrant executed at the
    Etobicoke condominium

[60]

The police obtained a warrant for the Etobicoke
    condominium. They executed that warrant about two hours after the police had
    entered Hobeikas unit and secured the premises.

[61]

The ITO relied on to obtain the warrant for the
    Etobicoke condominium included information about what the police heard at the
    door to Hobeikas unit, and what the police saw when they entered his unit
    without a warrant. Counsel submit, without that information, the warrant could
    not have issued, rendering the search of the Etobicoke condominium unit unreasonable.

[62]

This argument depends on a finding the police
    acted unlawfully in entering the building and Hobeikas condominium unit
    without a warrant. For the reasons outlined above, I am satisfied s. 11(7) of
    the CDSA authorized the entry into the building, the entry into Hobeikas unit,
    and a brief safety search of that unit. None of the information in the ITO was
    constitutionally tainted and it was all properly considered on the application
    for the warrant.

[63]

Counsel for Sanchez also argued the trial judge
    erred in refusing to allow the cross-examination of the affiant of the ITO used
    to obtain the warrant for the Etobicoke condominium. Counsels argument is a
    novel one. He contends he should have been allowed to ask the affiant whether he
    believed he would have had reasonable grounds to obtain the warrant if the
    information about what the police heard at Hobeikas door, and what they saw in
    the unit, was not available to him when he swore the ITO. Counsel indicated the
    affiant had testified at the preliminary inquiry he did not believe he had
    grounds for a warrant without that information.

[64]

This argument falls away in the face of my
    conclusion the police acted lawfully in entering the Etobicoke condominium,
    proceeding to Hobeikas unit, and entering that unit. There is no justification
    for excluding any of the information contained in the ITO.

[65]

In any event, I see no relevance to the proposed
    questioning. An affiant asserts his or her belief evidence will be located in a
    certain place and sets out the grounds for that belief. The affiants belief the
    required grounds exist is fundamental to the integrity of the warrant granting
    process. An affiant who swears the ITO without that belief commits perjury. Furthermore,
    if the affiant does not actually believe the grounds in the ITO provide a basis
    for issuing the warrant, the warrant cannot lawfully issue, regardless of how
    strong the grounds may be for issuing a warrant.

[66]

The integrity of the warrant granting process is
    not compromised by evidence the affiant would not have believed reasonable
    grounds existed if the facts were different than the affiant believed them to
    be. The affiants belief about the adequacy of grounds for obtaining the
    warrant, based on facts other than those sworn to by the affiant in the ITO, is
    irrelevant to the validity of the warrant.

[67]

Two things matter insofar as the validity of a
    warrant is concerned. Did the affiant believe the grounds set out by the
    affiant provided reasonable grounds to obtain the warrant, and, objectively
    viewed, could those grounds reasonably support the issuance of the warrant? In answering
    the second of those questions, the court may be required to excise parts of the
    information contained in the ITO if that information was obtained unlawfully.

(iv)

The validity of other searches and seizures

[68]

Hobeika also argues the seizures made pursuant
    to warrants and production orders in the days and weeks following the searches
    of the condominium units breached his s. 8 rights. The warrants and production
    orders were based, in part, on evidence obtained in the search of the
    condominium units. Hobeikas challenge to the validity of these subsequent seizures
    depends on this court having accepted his arguments the search of either or
    both of the condominium units breached Hobeikas s. 8 rights. As set out above,
    I am satisfied the searches were lawful and consistent with the command of s. 8
    of the
Charter
. The challenge to the subsequent seizures fails.

B.

hobeikas section 10(b) argument

[69]

Hobeika was arrested at his vehicle at about
    9:45 p.m. He was immediately advised of his right to counsel. By 10:08 p.m.,
    the police were aware that Hobeika had exercised his right to counsel and
    identified the specific lawyer with whom he wished to speak. Hobeika was taken
    to the police station and arrived there at about 10:30 p.m. After being strip
    searched, he was placed in the cells.

[70]

The officer in charge, who had been involved in
    executing the search warrants, arrived at the police station shortly before
    3:00 a.m. He spoke with Hobeika. After doing so, he attempted to contact the
    named lawyer. When the officer in charge learned that lawyer was suspended from
    practice, he offered to contact duty counsel. Hobeika agreed and spoke with
    duty counsel shortly afterward.

[71]

There was no evidence of any steps taken by the
    police to facilitate Hobeikas contact with counsel, whether the named lawyer,
    or any other lawyer, between his arrest shortly before 10:00 p.m. and his
    conversation with the officer in charge at about 3:00 a.m. The police witnesses
    offered no explanation for the failure to make any effort to put Hobeika in
    contact with counsel. Hobeika did not testify on the
Charter

voir
    dire
, or at trial
.

[72]

The trial judge held there was no breach of s. 10(b).
    He said, at para. 143:

While there is some evidence of delay in
    facilitating the exercise by Mr. Hobeika of his right to counsel, the applicant
    has failed to lead sufficient evidence to persuade me that this delay was
    unreasonable in the circumstances.

[73]

The Crown concedes the trial judge erred in so
    holding. That concession is fully supported by the case law. In
R. v.
    Taylor
, 2014 SCC 50, the accused, like Hobeika in this case, had been
    advised immediately of his right to counsel and had indicated he wished to
    speak to a lawyer. The police took the accused to the hospital, but did nothing
    to facilitate contact with counsel while he was there. Abella J., for a
    unanimous court, said, at para. 24:

The duty to inform a detained person of his or
    her right to counsel arises immediately upon arrest or detention [citations
    omitted] and the duty to facilitate access to a lawyer, in turn, arises
    immediately upon the detainees request to speak to counsel. The arresting
    officer is therefore under a constitutional obligation to facilitate the
    requested access to a lawyer at the first reasonably available opportunity.
The burden is on the Crown to show that a given delay was
    reasonable in the circumstances
. [Citation omitted.] Whether a delay in
    facilitating access to counsel is reasonable is a factual inquiry. [Emphasis
    added.]

[74]

There is no evidence to support a finding that the
    delay in providing access to counsel was reasonable in the circumstances. Crown
    counsel on appeal does not try to argue otherwise. Hobeikas right to counsel
    under s. 10(b) was breached when he was held for over four hours before the
    police took steps to put him in touch with counsel.

C.

should the section 10(b) breach result in the exclusion of any of
    the evidence under section 24(2) of the
charter
?

[75]

The trial judge found no breach of Hobeikas
    rights under s. 10(b). He went on, however, to consider, whether assuming there
    was a breach, any of the evidence should be excluded. He concluded all of the
    evidence should be admitted:
Charter
Reasons, paras. 147-55. Given the
    trial judges erroneous conclusion that the appellant, Hobeika, had the onus to
    demonstrate the police acted unreasonably in not facilitating his contact with
    counsel, I will conduct a
de novo
s. 24(2) analysis:
R. v. Thompson
,
    2020 ONCA 464, at para. 73.

[76]

Counsel for Hobeika submitted that once Hobeika
    demonstrated a breach of s. 10(b), he was entitled to a remedy under s. 24(2),
    meaning at least some part of the evidence against Hobeika should be excluded.
    I disagree. Section 24(2) does not create an automatic rule of exclusion
    applicable to evidence obtained in a manner that infringed a constitutional
    right. Instead, s. 24(2) requires the accused to
establish
having
    regard to all the circumstances the admission of it [the evidence] in the
    proceeding would bring the administration of justice into disrepute: see
R.
    v. Lenhardt
, 2019 ONCA 416, at para. 11.

[77]

Given the very broad reading favoured by the
    courts, of the phrase obtained in a manner in s. 24(2), the breach of
    Hobeikas s. 10(b) rights could trigger the exclusion of evidence obtained in
    the searches of the two condominium units and Hobeikas vehicle: see
R. v.
    Pino
, 2016 ONCA 389, at paras. 50-78;
R. v. Wittwer
, [2008] 2
    S.C.R. 235, at para. 21;
R. v. Rover
, 2018 ONCA 745, at para. 35;
R.
    v. Lichtenwald
, at paras. 54-63. Any violation of Hobeikas s. 10(b)
    rights could not, however, constitutionally taint evidence obtained by the
    police through the execution of subsequent lawful warrants and production
    orders days or even weeks later:
R. v. Boutros
, 2018 ONCA  375, at
    paras. 24-26.

[78]

The admissibility of evidence under s. 24(2)
    falls to be determined by the now well-known three-pronged line of inquiry laid
    down in
R. v. Grant
, [2009] 2 S.C.R. 353. The focus of that inquiry is
    identified at para. 70 of
Grant
:

Finally, s. 24(2)s focus is societal. Section
    24(2) is not aimed at punishing the police or providing compensation to the
    accused, but rather at systemic concerns. The s. 24(2) focus is on the broad
    impact of admission of the evidence on the long-term repute of the justice
    system.

[79]

Both the language of s. 24(2) and the analysis
    provided by
Grant
make it clear the s. 24(2) inquiry is specific to
    the circumstances of the individual case. In this case, there is little
    evidence about the circumstances surrounding the failure to facilitate contact
    with counsel. Hobeika did not testify. The evidence of the police officers reveals
    an unexplained failure for over four hours to comply with the constitutional
    command of s. 10(b). That failure in and of itself speaks to a significant s.
    10(b) breach. There is, however, no evidence permitting any further finding. The
    officer who arrested Hobeika and advised him of his right to counsel indicated
    he told Hobeika to speak to an officer at the police station if he wanted to
    contact his lawyer. On cross-examination, that officer disagreed with the
    suggestion the police routinely withheld access to counsel while investigations
    were underway, and further denied any knowledge of instructions to the effect that
    Hobeika should not be allowed to access counsel. The officers denials went
    unchallenged.

[80]

There is also no evidence in this case of a
    police pattern of ignoring constitutional rights in the course of the
    investigation. To the contrary, although the investigation was somewhat complex
    and involved the execution of various search warrants and production orders, there
    was no evidence of any other constitutional breach.

[81]

The failure to comply with s. 10(b) for over
    four hours reflects a troubling police indifference to Hobeikas s. 10(b)
    rights. There can be no suggestion of any good faith by the police. There can
    be no suggestion the police were operating in an area of constitutional
    uncertainty. There are no circumstances that might ameliorate, to some degree,
    the failure to comply with s. 10(b). This was a clear violation of a
    long-established and well-understood constitutional obligation.

[82]

A serious breach of a long-established and
    well-understood constitutional right can lead to exclusion of evidence, even
    where the breach is not systemic in nature, or part of a pattern of police
    misconduct:
R. v. Patterson
, at para. 44;
R. v. Lichtenwald
,
    at para. 89;
R. v. Thompson
, at para. 94.

[83]

Exclusion is not, however, automatic. Section
    24(2) requires, in all cases, an approach which balances the competing relevant
    factors, with a view to maintaining the long-term repute of the administration
    of justice. The court must assess the seriousness of the police misconduct, the
    impact on the appellants
Charter
-protected interest, and societys
    interest in an adjudication on the merits:
Grant
, at paras. 72-86.

[84]

This court considered the application of the 
Grant

    factors in
Rover
, a case which is similar in many respects to this
    one. In
Rover
, the appellant was denied access to counsel for about
    six hours while the police obtained and executed a search warrant on his
    residence. As in the present case, the accused in
Rover
was not
    questioned by the police during this time period. Again, as in this case, there
    was no causal connection between the s. 10(b) breach in
Rover
, and the
    discovery of the evidence obtained through the execution of lawful warrants.
    Finally, the evidence sought to be excluded in
Rover
, like the
    evidence here, was reliable and essential to the proper adjudication on the
    merits of serious criminal charges.

[85]

There is, however, one crucial difference
    between this case and
Rover
. In
Rover
, the police withheld access to counsel for several hours,
    pursuant to a police protocol which routinely denied access to counsel by
    arrested persons if search warrants were being obtained or executed in respect
    of the offence for which the person had been arrested. This court described the
    effect of that practice, at para. 32:

The police practice described by the officers
    replaces the narrow, case-specific exception to the constitutional right to
    speak to counsel without delay upon arrest with a protocol that routinely
    delays an arrested persons access to counsel for an indeterminate time,
    usually hours, whenever the police, for whatever reason deem it appropriate to
    arrest them before applying for a search warrant.

[86]

The systemic nature of the s. 10(b) breach
    in
Rover
figured prominently in
    this courts finding that the evidence must be excluded. The court said, at
    para. 37:

The rationale for the exclusionary rule
    identified in
Grant
, as applied in these circumstances, requires a
    consideration of the long-term impact on the reputation of the administration
    of justice caused by the admission of evidence obtained in an investigation
    conducted under a police practice that inevitably and routinely denies detained
    persons their constitutional right to access counsel.
The
    systemic nature of the violation plays a central role in assessing its
    long-term impact on the proper administration of justice
. [Emphasis
    added.]

[87]

When addressing the seriousness of the police
    misconduct, the court observed, at para. 40:

Constitutional breaches that are a direct
    result of systemic or institutional police practices must render the police
    conduct more serious for the purposes of the s. 24(2) analysis.
A police practice that is inconsistent with the demands of the
    Charter produces repeated and ongoing constitutional violations that must, in
    the long run, negatively impact on the due administration of justice. That is
    so even if many of the breaches are never exposed in a criminal court
.
    [Emphasis added.]

[88]

On the evidence adduced at trial, the breach of
    Hobeikas s. 10(b) rights cannot be characterized as the product of an improper
    police protocol, or a systemic failure by the police involved in this
    investigation to meet their constitutional obligations. On the evidence, the breach
    was a situation-specific, isolated failure, albeit a serious one, by the
    officers who had custody of Hobeika during the relevant time period.

[89]

In
R. v. Harrison
, 2009 SCC 34, at para
    36, former Chief Justice McLachlin emphasizes the qualitative nature of the
    balancing process engaged under s. 24(2). The nature of the s. 24(2) inquiry means,
    in some cases, different judges will reasonably arrive at different conclusions
    with respect to admissibility. I think this case falls into that group.

[90]

I come down on the side of admissibility. To exclude
    the evidence obtained in the searches of the condominiums and Hobeikas vehicle
    strikes me as using s. 24(2) more to punish the offending police officers than
    to vindicate the long-term repute of the criminal justice process. The
    appellant has not established the admission of the evidence obtained in the searches
    would, in all the circumstances, bring the administration of justice into
    disrepute.


III



the sentence
    appeals

(i)

Hobeikas sentence appeal

[91]

In his factum, counsel for Hobeika submitted the
    jail term, an effective sentence of 8½ years, should be reduced and the
    forfeiture orders eliminated or varied downward. Counsel did not elaborate on
    any alleged errors said to justify appellate intervention.

[92]

The trial judge gave careful reasons for
    sentence in which he systematically addressed the evidence, the applicable
    sentencing principles, and the application of those principles to this case:
R.
    v. Hobeika
, 2018 ONSC 1293. I see no error in the sentence imposed.

[93]

The 8½ year sentence imposed is consistent with
    sentences imposed in cases involving commercial drug dealers and substantial quantities
    of various drugs: see
R. v. Oraha
, 2014 ONCA 359. The trial judges finding
    the $400,000 in cash and bank drafts was the proceeds of crime was supported by
    overwhelming evidence, as was his finding that the Etobicoke condominium owned
    by Hobeika was offence-related property, within the meaning of s. 18 of the
    CDSA. The trial judges refusal to exercise his discretion and grant relief
    from forfeiture under s. 19.1 of the CDSA reveals no error:
R. v. Hobeika
,
    at paras. 70-87.

[94]

I would dismiss Hobeikas sentence appeal.

(ii)

Sanchezs sentence appeal

[95]

At trial, the Crown sought a 6-year penitentiary
    sentence for Sanchez. Counsel for Sanchez argued that Sanchez should receive a
    reformatory sentence. The trial judge imposed a sentence of 4½ years.

[96]

On appeal, counsel again submits a sentence of
    less than two years should be imposed. Counsel now, however, argues Sanchez
    should receive a conditional sentence, rather than an actual term of
    imprisonment. This submission could not be made at trial, as the relevant provisions
    of the
Criminal Code
precluded a
    conditional sentence for the crimes Sanchez had committed:
Criminal
    Code
, s. 742.1(c), (e)(ii). Subsequent to Sanchezs trial, this court held
    those sections unconstitutional:
R. v. Sharma
, 2020 ONCA 478
.

[97]

In urging the court to impose a conditional
    sentence, counsel stresses Sanchezs relative youth, the absence of any
    criminal record, his strong family support, and his positive rehabilitative prospects.
    Counsel also relies on Sanchezs immigration status. Sanchez has been in Canada
    most of his life, but is not a Canadian citizen. If sentenced to a term of imprisonment
    beyond six months, Sanchez is subject to removal from Canada by the immigration
    authorities when his sentence is complete. Were this court to impose a
    conditional sentence, Sanchez would not be subject to a removal order.

[98]

Sanchezs immigration status is properly taken
    into account on sentencing. It cannot, however, justify the imposition of a
    sentence that is not proportionate to the gravity of the offence, and does not
    adequately reflect the level of Sanchezs culpability:
R. v. Pham
, 2013
    SCC 15, at paras. 13-19;
R. v. Suter
, 2018 SCC 34, at paras. 47, 56.

[99]

Taking into account the quantity and variety of
    drugs seized from the Etobicoke condominium, and the high volume and lucrative nature
    of the drug operation in which Sanchez was involved, a sentence of less than
    two years would be disproportionate to the gravity of the offence and Sanchezs
    level of culpability. Sanchez was living in the Etobicoke condominium, which
    was clearly a hub of the drug trafficking operation. While Sanchezs role was
    clearly subordinate to that of Hobeika, he was no mere courier. When Hobeika
    left the unit, Sanchez was left in charge of a lot of very valuable product.

[100]

The trial judge considered the various mitigating factors and
    balanced them against the aggravating factors. I see no basis upon which this
    court can intervene and vary the sentence.


IV



conclusion

[101]

I would dismiss the appeals.

Released:

DD
NOV 26 2020

Doherty J.A.

I agree K. van Rensburg J.A.

I agree G.T. Trotter J.A.





[1]

Hobeika argued in his factum the evidence did not warrant
    convictions on the drug-related charges. He abandoned that ground of appeal in
    oral submissions.


