R. v. McPhail, 2019 ONCJ 532

R. v. McPhail

Citation: 2019 ONCJ 532

Court: Ontario Court of Justice

Date of Decision: July 17, 2019

Dates Heard: June 13, 17, and 18, 2019

Parties

Crown: Her Majesty the Queen

Counsel for Crown: Julie Battersby and Benjamin Snow

Accused: Vern McPhail

Counsel for Accused: Lori Ann Thomas

Judge: The Honourable Justice Susan Chapman

Introduction

1Mr. Vern McPhail stands charged with 1) being accessory after the fact to an attempted murder by comforting Tarrick Rhoden for the purpose of enabling him to escape, contrary to s. 463(b) of the Criminal Code; 2) obstructing justice by harbouring Tarrick Rhoden, contrary to s. 139(2) of the Criminal Code, and; 3) breaching a recognizance contrary to s. 145(3) of the Criminal Code.

Overview

2For the purposes of this trial, it was agreed between the parties that on June 14, 2018, Tarrick Rhoden committed the offence of attempted murder, contrary to s. 239 of the Criminal Code, through his involvement in a shooting at a playground located at 10 Alton Towers Circle in the City of Toronto. Two young girls, ages 5 and 9, sustained non-lethal gunshot wounds from the shooting. It is believed the target was an adult who was in their vicinity at the time.

3On June 19, 2018 Tarrick Rhoden was publicly identified by police as wanted for attempted murder and various other criminal offences arising from his role in the shooting. Until August 22, 2018, Tarrick Rhoden remained at large. This shooting and the ensuing police investigation generated significant media attention. A sample of the articles published on the internet between June 18, 2018 and August 22, 2018 were filed in evidence.

4On August 22, 2018, police located Tarrick Rhoden inside Vern McPhail's residence at 2445 North Shore Road in Algonquin Highlands, Ontario, and he was placed under arrest for attempted murder and other related criminal offences.

5A great deal of evidence was called by the Crown at trial in relation to the arrests of Mr. Rhoden and Mr. McPhail on August 22, 2018. Those arrests involved numerous O.P.P. and Toronto Police Service officers, extensive surveillance, a helicopter, an armoured vehicle and a canine unit. It was an elaborate, and it would seem in the case of Mr. Rhoden, dangerous arrest.

The Admissibility of the Accused's Utterances

6Following his arrest, Mr. McPhail made some comments to Detective Constable Pyke, that the Crown relies on in proving mens rea in relation to both the accessory after the fact charge and the obstruct justice charge.

7The Defence challenge the admissibility of those statements on the basis that they flow from a breach of both ss. 10(a) and 10(b) of the Charter and therefore ought to be excluded pursuant to s. 24(2) of the Charter. It is therefore necessary to consider the circumstances around the making of those statements in order to determine issues of Charter compliance and admissibility.

The Arrest

8Detective Sergeant Jamie Brockley has been with the OPP since September of 2000. He first became involved in the investigation of this matter on August 22, 2018 when he was doing surveillance set up the area of Mr. McPhail's residence. D/Sgt Brockley was standing at an observation site not far from the residence when at 5:40 p.m. he and Officer Pyke saw Mr. McPhail's red pick-up truck turn down a road heading west bound towards the residence. Another officer drove by the residence and saw the red truck in the driveway. Mr. Rhoden was subsequently arrested at the McPhail residence and the house was then searched.

9After the search of the residence was complete at 8:00 p.m., D/Sgt. Brockly was advised that only one person had been located in the residence and that it was not Mr. McPhail. Then at approximately 8:42 p.m., while standing approximately 50 to 100 meters away from the residence, D/Sgt Brockley saw a very old yellow car drive by east bound towards the residence. The passenger looked like Vern McPhail so he placed a call to officers that had cleared ahead of the yellow car so that they would stop it.

10At 8:44 D/Sgt Brockley arrived at where the car was stopped and saw Mr. McPhail step out of the passenger side door. He immediately placed Mr. McPhail under arrest for "accessory to attempt murder for having Rhoden at his house."

11D/Sgt. Brockley handcuffed Mr. McPhail from behind and read a caution and the right to counsel from the back of his police-issued book. The officer could not recall the specific words stated as it was in an old notebook, which he was unable to access for trial, and new notebooks with different wording had been issued in the interim.

12D/Sgt. Brockley testified that he believes Mr. McPhail understood his legal rights, though he did not record his response in his notes. He testified that he would only record the response if he the arrestee indicated that he/she did not understand. However, D/Sgt Brockley did note that Mr. McPhail advised him that he wanted to speak to a lawyer and gave him the name of Ray Gimble.

13At that point D/Sgt Brockley's dealings with Mr. McPhail were done and he left him in the custody of D/C Pyke while he went and spoke to the driver of the car. It was about 17 minutes before transportation to the station could be arranged for Mr. McPhail. He saw Officer Pyke and perhaps Officer Jansz interacting with Mr. McPhail during this time after the arrest but he wasn't aware of what was being said.

14D/Sgt Brockley and D/C Pyke were to be relieved at 1:00 a.m. that evening but they both remained at the scene after that time. He thought that he left at around 2:30 a.m. and that Officer Pyke was still on scene when he departed.

The Post Arrest Discussion

15Detective Constable Darlene Pyke testified that she has been a police officer with the OPP for 4 ½ years. In January of 2016 she started as a full-time constable. She agreed that note taking is one of her duties and that her notes must be precise, in chronological order, and include every statement, observation, and relayed information, as required by OPP policy. She also agreed in cross-examination that she was aware of the fact that she was not permitted to question or elicit information from a detained or arrested person after that person indicated he/she wished to invoke the right to counsel.

16D/C Pyke testified that before Mr. McPhail was detained, she was aware that there were reasonable and probable grounds for his arrest as an accessory after the fact of attempted murder. D/C Pyke was present during Mr. McPhail's arrest and was aware that he advised that he wished to speak to a lawyer. However, she could not remember the lawyer's name.

17D/C Pyke remembered that Mr. McPhail was upset, but calm and compliant when he was in her custody. She testified that at some point Mr. McPhail obtained and smoked a cigarette. She could not recall how this occurred, whether she got it for him or he got it for himself, but thought he got it himself from his own pack. She believed, erroneously as it turns out, that he was not in handcuffs at that time.

18D/C Pyke testified that Mr. McPhail made some comments to her within seconds or minutes of his arrest, and prior to his being transported to the police station. She is the only person that heard these utterances. D/C Pyke recorded some of the utterances Mr. McPhail made to her, but those she did record were not verbatim. The utterances she recorded in her notebook were as follows:

• [Mr. McPhail] knew "Cody" was in his residence;
• Cody had been residing with him for a week;
• Cody came with a bag, his luggage, which was still in his residence; and,
• [Mr. McPhail] did not want Cody there and should have called police to have him removed.

19During her testimony in-chief D/C Pyke described her interactions with Mr. McPhail, while he was in her custody, in the following terms:

• "he explained to me that he refers to Tarrick as Cody";
• "he said he knew Cody was there and that he had only been there for a week …he had been there maybe a week";
• "and he brought a bag to stay and the bag should be in the residence", and;
• "he should have called and I said 'ya, you should have' and he said while he thought Cody was suppose to turn himself in.

20D/C Pyke testified that her notes do not record verbatim what Mr. McPhail said but rather a summary of what he told her. She testified that "I didn't get exactly what he said" and "these are not direct quotes but kind of the context of what he said" and "more of a summary of what I was told".

21When asked during examination in chief how it was that Mr. McPhail came to make these statements D/C Pyke testified that:

"We were just standing there and he was obviously really upset and I had had really good dealings with him before, so he just kind of put his head down and I just remember him saying I know Cody was there but it sounded like he had only been there for a week, he showed up and Vern didn't want him there either."

22When asked in-chief whether she asked him any questions the officer testified that she didn't think so, and "not that I remember, no." However, when asked in-chief to repeat once more, and as accurately as possible, the conversation she had with Mr. McPhail, D/C Pyke testified that:

He refers to Rhoden as Cody so in my notes its Cody 'he said he knew Cody was there - that he was arrested and he was found in his residence and he said that Cody had shown up maybe a week and he showed up with a bag and the bag should still be in his residence and I knew I should have called you guys – and I don't know if he said police but he meant us – and then I said either "yes, you should have" or "why didn't you?" and he said Cody was suppose to turn himself in. (emphasis added)

23When asked during her evidence in chief if all of these utterances were in her notes D/C Pyke testified "No, I remembered once I went through the notes and we were talking [at the meeting with the Crown attorneys the day before she testified] I remember once he said about – I said "why didn't you call us?" or "you should have called us" and I remember him saying the reason why was he thought Cody had told him that he was going to turn himself in, that Cody said that, like, it wasn't him that did it – I can't exactly remember how he said it – but Cody was going to turn himself in and it was kind of like a misunderstanding." She testified that she remembered these additional utterances for the first time some 299 days after they were made.

24When asked in cross-examination if she was having difficulty recalling who started the conversation, her or Mr. McPhail, D/C Pyke testified "I believe he started it" as it was not her investigation. When it was suggested to her that she said to Mr. McPhail "this is about a shooting of two young girls" she hesitated before testifying "I don't remember saying that." When asked if she told Mr. McPhail that the police were concerned for his safety because he was with Rhoden, D/C Pyke testified "I don't remember saying that" and "ya, I don't remember".

25D/C Pyke testified that she made her notes 10 to 15 minutes after the comments were made and while she was securing the address for 7.5 hours, alone in her police car. She made the notations of the utterances after D/Sgt Brockley instructed her to do so.

Sections 10(a) and (b) of the Charter

Section 10(a)

26Section 10(a) of the Charter requires that an arrested person be informed promptly of the reasons for their arrest. In order to ensure the arrested person understands that there is no obligation to respond, the individual who is arrested should be cautioned and informed in simple language of the reason for the arrest. The information relayed must convey the extent of the person's legal jeopardy. In assessing whether there was a breach of s.10(a), it is not the precise wording, but instead what the arrested person could have reasonably understood: R. v. Mann, 2004 SCC 52, at paras 21 and 45; R. v. Evans, [1991] S.C.J. No. 31 (QL), at para. 31.

27The allegation of a section 10(a) breach in this case is the suggestion that the arresting officer, D/Sgt Brockley, did not fully inform Mr. McPhail that he was being arrested for accessory in relation to attempted murder, as opposed to any other offence. No notice was given to the prosecution of the s. 10(a) issue until after the evidence closed. If notice had been given the record might have been more developed from the Crown's side.

28Nonetheless, D/Sgt. Brockley testified in-chief that when he arrested Mr. McPhail he told him that he was arresting him for being an accessory after the fact to an attempt murder for having Mr. Rhoden in his house. It is true that in cross-examination he was asked if he arrested Mr. McPhail for being an "accessory", as recorded in his notes, and he responded "yes". However, I took that to be a short form statement in cross-examination that does not detract from his evidence in chief on this particular point. According, any s.10(a) Charter concern disappears.

29In any event, it was agreed that Mr. McPhail was subsequently and properly informed of the reason for his arrest by officers tasked with this job by Det. Jansz prior to making any statements to D/C Pyke and therefore, even if there had been initial non-compliance with the s.10(a) right, Mr. McPhail was ultimately properly informed of what he was being arrested for.

Section 10(b)

a. Positions of the Parties

30In this case, it is alleged that Mr. McPhail's s.10(b) rights were violated when D/C Pyke elicited information from him through conversation and questioning after he had asked to speak to his lawyer and before he had the opportunity to do so.

31The defence argue that at a minimum the recently alleged additional utterance made by Mr. McPhail - that he didn't turn Mr. Rhoden in because he believed that "Cody" was going to turn himself in - was elicited by the question posed to him by D/C Pyke: "Why didn't you?" and was therefore directly obtained as a result of the Charter breach.

32However, it is further argued by the defence that D/C Pyke's evidence is not reliable or credible with respect to her belief that it was the Applicant that started the conversation in the first place and for this reason the entirety of the exchange ought to be excluded from evidence pursuant to s. 24(2) of the Charter.

33On the other hand, the Crown points to the fact that it is Mr. McPhail that is the Charter applicant and therefore bears the burden of proving a breach of his right on a balance of probabilities. Mr. Snow argues that, having regard to the burden of proof, the absence of evidence and/or any uncertainty in the evidence weighs in favour of the Crown.

34Further, the Crown relies on the decision of the Court of Appeal for Ontario in R. v. Miller, [2018] O.J. No. 6342, for the proposition that if a detainee insists on making spontaneous and unprompted statements before speaking to counsel there is nothing wrong with the police listening in and perhaps even asking some clarifying questions.

b. The Legal Principles That Apply

(i) Section 10(b) and The Duty to Hold Off Questioning

35The purpose of s. 10(b) of the Charter is to minimize the power imbalance between the state and the detainee at the outset of detention. It imposes both an informational duty and implementational duty once an arrested person has advised he/she wishes to exercise that right. Specifically, it requires the police:

• To inform the arrested person of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
• If the arrested person has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right; and,
• To refrain from eliciting evidence from the arrested person until he or she has had a reasonable opportunity to exercise that right.

36The Supreme Court of Canada has made it clear that the police have an obligation to hold off any questioning or any attempt to elicit information until the person has spoken with counsel: R. v. Sinclair, 2010 SCC 3, at para. 27; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 29-30.

37The Crown relies upon Miller, supra, a decision of the Court of Appeal, to suggest that the duty to hold off is not necessarily violated by officers asking clarifying questions of an accused who has made spontaneous utterances. The Court in Miller described the scenario in the case before it in this way:

Immediately upon being fully informed of his right to counsel for the third time, the appellant made a spontaneous and unprompted incriminating statement. As this court has held, if a detainee makes an un-elicited and spontaneous incriminating statement after being appropriately cautioned, there is no violation of s.10(b): R. v. Guenter, 2016 ONCA 572, 340 C.C.C. (3d) 351, at paras. 61-2.

38In Miller, it was conceded by the Appellant that the CBSA officers were under no legal duty to stop him from making his spontaneous statements. However, the court further comments that "while the agents did not remain silent as the appellant made his statement, their evidence was that the questions they asked were simply to clarify what the appellant was saying". The accused testified in a voir dire at trial and insisted that everything he told the agents was spontaneous but misunderstood. The trial Judge's decision admitting the statements at trial was upheld on appeal.

39I do not take the Court's decision in Miller to represent a departure from the 10(b) principle that requires the police to hold off questioning so as to facilitate the opportunity for an arrestee to consult counsel. Indeed, the Court in Miller states as follows:

We recognize that the agents were under a duty to refrain from eliciting any incriminating evidence from the appellant until he had been given a reasonable opportunity to reach a lawyer or unequivocally waived his right to do so: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38.

40It would seem that the Court in Miller does not ultimately determine that there was no s. 10(b) breach in the case. Rather, the court upholds the trial judge's decision to admit the evidence on the basis that even assuming that there was a s.10(b) breach, due to clarifying questions asked and a delay in making it possible for the accused to speak to counsel, its admission would not bring the administration of justice into disrepute under 24(2) of the Charter.

(ii) The Burden of Proof in a Charter Application

41There is no question but that the Charter applicant bears the burden of proof on a balance of probabilities of demonstrating a breach of his or her Charter rights. However, if there is ambiguity in the evidence on a Charter application, for example due to an officer's failure to take notes coupled with an inability to recall what took place, does that neutralize the ability of the Charter applicant to meet its burden of proof? Is silence golden? Not necessarily.

42In this regard, I find very helpful the comments of Fairburn, J., as she then was, in R. v. Daley, 2015 ONSC 7367. In that case, the question of the alleged s.9 Charter breach turned on the officer's reason for making a vehicle stop. The officer that made the stop took no notes in relation to it but testified at trial, some six years later, that he recalled it well. In these circumstances, Justice Fairburn had no confidence about what happened in the context of the stop and states as follows:

The Crown suggests that even if I conclude that the reason for the stop is unknown, the defence will have failed to establish on a balance of probabilities that there was an unlawful reason for the stop. As such, the s.9 application must be dismissed. I disagree. If this were correct, then the defence could never get to a s.9 Charter breach where police officers claimed or feigned a lack of memory about the reason for the stop. That cannot be right. When put to the challenge, the police are under an obligation to articulate the lawful basis upon which a vehicle is stopped. Where they cannot do so, there will be a groundless vehicle stop. This gives rise to s.9 concerns.

In the end, I accept Cst. Davis' evidence about the fact that he cannot recall why the van was stopped. While there was evidence from Cst. Perron that the reason for the stop was tailgating, for the reasons above, including the failure to take notes or produce a will say for 20 months, I am left entirely uncertain as to why the vehicle was stopped. As such, I am left in a factual void as to the reason for the stop. In the absence of credible evidence about a lawful reason for the stop, I find that it was unlawful.

43In Daley, there was some obligation for the officer to point to a reason for the vehicle stop and he was unable to do so. Nonetheless, I take the principles stated by Justice Fairburn to be helpful in understanding the nature of the burden of proof in a Charter application and the significance that attaches to a factual void generated by the failure of an officer to make proper notes of their interactions with an accused and/or recall the events.

44It is important to bear in mind that the police have an obligation to make accurate notes of what occurs on their shift, not just for the purpose of refreshing their memory at trial but also to record what went on and to make disclosure to the Crown and the defence: Wood v. Schaeffer, 2013 SCC 71 at paras. 63, 67-8.

45The accuracy of notes is particularly important when an officer is recording an accused's statement: R. v. Ferris, [1994] 3 S.C.R. 756. The admissibility of an incomplete verbal utterance can raise questions concerning its context and meaning which in turn impact on its probative value, weight and even admissibility. If will have more to say about this when I discuss the case on its merits below.

c. Application of the Legal Principles to this Case

46There is no dispute but that Mr. McPhail had indicated his desire to speak with counsel and that his subsequent comments to D/C Pyke were made before he was given the opportunity to do so. Therefore, the allegation of a breach of Charter s.10(b) largely turns on whether or not the comments made by Mr. McPhail to D.C. Pyke were spontaneous or elicited. I find that they were elicited.

47On one version of the conversation testified to by D/C Pyke, she did ask Mr. McPhail a very important question while he was in her custody and waiting to be transported to the police station. She testified that she may have asked Mr. McPhail why he had not turned Mr. Rhoden in to the police and he in turn provided what is perhaps the most incriminating aspect of his alleged comments, namely that he thought Rhoden would be turning himself in.

48Again, this exchange does not appear in her notes and the officer testified that she recalled it for the first time the day before she testified at trial and 299 days after it was said. Given the nature of the comment Mr. McPhail purportedly made to the officer, it makes more sense it was made in response to a question than a mere comment. I find as fact that D/C Pyke did elicit this response through a pointed question and she did so in contravention of her duty to hold off. I therefore find that there was a breach of Mr. McPhail's Charter 10(b) rights.

49I am also concerned that D/C Pyke may well have initiated the conversation with Mr. McPhail and/or asked him other questions during their "discussion" but that it is impossible to know for sure given the officer's poor note taking and recollection of events.

50D.C. Pyke does not have verbatim notes of the conversation she had with Mr. McPhail. She acknowledges that her notes are more of a summary of what was said. For example, in her notes she states that the conversation starts with Mr. McPhail talking about "Cody" being at his place. The officer explains in her testimony that Mr. McPhail refers to Mr. Rhoden as Cody. That may very well be but how does she know that? She testified that Mr. McPhail told her that but what exactly what did he say and when? How did the conversation begin? None of that is recorded in her notes or even thoroughly recounted in her testimony.

51Then, in her testimony at trial, she augmented Mr. McPhail's utterances for the first time from memory. In each retelling, the contents of the exchange she had with the detainee changes, as illustrated in the summary of her evidence set out above. Further, her recollection of what was going on during the time that she had Mr. McPhail in her custody is at odds with the evidence of other officers.

52At first D/C Pyke testified that she did not ask Mr. McPhail any questions at all and then when she recounted her interactions with him she testified that she may have asked him at least the one question. Further, this was not a mere "clarifying question". It was a question directed to the central issue of Mr. McPhail's potential liability in relation to serious charges.

53I realize that this is a Charter application and Mr. McPhail is the Charter applicant and as such bears the burden of proof on a balance of probabilities in showing a breach of his rights and yet he did not testify on the voir dire. I am also aware of, and accept, the evidence of Sgt. Jansz that during his dealings with the accused, just prior to D/C Pyke taking custody of him, Mr. McPhail "was talking non-stop". Sgt Jansz "cut off" Mr. McPhail from speaking to him which, to the officer's credit, was more than what was required of him by the Charter. This offers some support for the suggestion that the utterances made by Mr. McPhail to D/C Pyke were spontaneous and only partially elicited.

54However, given the failure of Officer Pyke to make accurate notes of the conversation she had with the accused, and her purported ability to recall certain unrecorded portions of his statement some 10 months later, I have no real confidence in her recounting of the conversation and/or that she was a mere passive recipient of information.

55In sum, D.C. Pyke's recounting of the conversation she had with Mr. McPhail suffers from the following problems:

• Not only are the statements not video or audio taped, they are not even all recorded in the officer's notes;
• The officer testified that she recalled additional comments made by Mr. McPhail during the arrest on August 23, 2018 for the first time mid-trial, on June 17, 2019 – some 299 days later;
• The officer testified that the notes of the conversation that she did make at the time were not verbatim but a mere summary of what she was told;
• She was not certain whether she asked him a question or instead made a comment that resulted in Mr. McPhail telling her why he didn't turn "Cody" in;
• In cross-examination she was asked whether she started the conversation with Mr. McPhail by telling him about the shooting of the girls in the playground and she testified "I don't believe I did" – a response I found to be a little less certain than one would hope for given the importance of this fact and its potential impact on any subsequent statements made by Mr. McPhail;
• She was also asked in cross-examination the following questions and gave a similarly luke warm denial: whether she explained to Mr. McPhail that the man in his residence was a suspect for the attempted murder of the two girls; that the police were concerned for his safety; whether he snooped in the man's bag while he was in the residence; or whether she said anything at all at the start of the conversation.

56Further, D/C Pyke's general recall of events surrounding her conversation with Mr. McPhail is quite poor. For example,

• She could not recall where the yellow vehicle he was in was stopped, even though she is familiar with the area;
• She did not record anything that Mr. McPhail said to D/Sgt when he was being arrested in her presence and could not say whether or not Mr. McPhail provided the name of the lawyer he wanted to speak to;
• She testified that Mr. McPhail smoked a cigarette while they stood together during the conversation, but couldn't recall if he grabbed his own pack of cigarettes or whether she offered him one. However, it is very unlikely he smoked a cigarette at all given that he was handcuffed from behind at the time;
• Officer Pyke could not recall whether or not Mr. McPhail was handcuffed at the time of her interactions with him but clearly he was;
• She could not recall what other officers were with her at the time of the arrest and subsequently, other than D/Sgt. Brockley;
• Det. Jansz was present during Mr. McPhail's arrest, but Officer Pyke only recalled him being at the staging area and when he was getting information for the telewarrant;
• Officer Pyke testified that she took custody of Mr. McPhail directly from Officer Brockley and did not think that any other officer dealt with him during this time frame. However, Officer Jansz testified that he dealt with Mr. McPhail immediately after his arrest and had his officers provide him again with his right to counsel and a caution before handing him over to D/C Pyke;
• Further, Officer Pyke made no mention whatsoever of anyone touching Mr. McPhail when he was in her custody much less a scenario where Det. Jansz had to disperse a small group of Mr. McPhail's supporters out of concern for his and officer safety;
• Officer Pyke did not record in her notes, and could not recall, who she passed custody of Mr. McPhail to following her interactions with him;
• She could not recall how long D/Sgt Brockley remained on scene and erroneously believed that he had left between 10 and 11 p.m., when in fact he left at least two hours later;
• She could not recall if she told D/Sgt. Brockley what Mr. McPhail specifically said to her or just that he had made some utterances. She did recall that he told her to make notes of the conversation.
• She could not recall whether she and D/Sgt Brockley talked about Mr. McPhail at all during the time they spent together (perhaps two hours) prior to his departure from the scene;
• She could not recall whether she told any TPS officers about Mr. McPhail's utterances. She thought she might have but could not recall who she would have spoken to. No TPS officer testified that they received this sort of information from her;
• She could not recall whether there were other officers around before Mr. McPhail left the scene.

57Furthermore, her note taking was overall quite poor. For example, she didn't make the usual notations in relation to the weather, the vehicle she was driving, her odometer reading, what officers were present on scene and when, what she overheard D/Sgt. Brockley discussing with Mr. McPhail in terms of right to counsel, the number of officers on scene the next day, etc.

58This was not a situation of urgency that did not permit D/C Pyke the time to make proper notes. Immediately following her surrendering of Mr. McPhail to, presumably, Toronto police she sat in her car for many hours doing surveillance and therefore had ample time to make proper notes. Indeed, she was specifically told by D/Sgt. Brockley to make notes of any of Mr. McPhail's utterances.

59As for the quality of her recall all apart from her notes, which I would need to rely upon in terms of the unrecorded utterances that she purports to have remembered for the first time some 10 months after the events in question, I have some concerns. For example, she was asked in cross-examination who the officer in charge of the case was and she testified that it was a difficult name beginning with "L" and that she could not spell it, even though she had spoken to him as recently as the day of her testimony at trial and had interviewed by him the day before. His name is Lane.

60Further, D/C Pyke didn't recall Det. Jansz being involved in the arrest at all even though he describes a somewhat dramatic scene of his having to disperse a group of Mr. McPhail's supporters while he was in either D/C Pyke's custody or vicinity.

61For these reasons I am concerned that I do not have a full account of the "conversation" that D/C Pyke had with Mr. McPhail and what if any further utterances attributed to Mr. McPhail by Officer Pyke were in fact elicited by her through casual questioning.

Section 24(2)

Burden of Proof and "Obtained in a Manner"

62If Charter breaches are established, then the burden lies with the accused to establish, again on a balance of probabilities, that the evidence should be excluded. The requirement under s. 24(2) that evidence was obtained in a manner that infringed or denied the rights or freedoms guaranteed by the Charter is met where it is established that a Charter violation occurred in the course of obtaining the evidence: R. v. Strachan, [1988] 2 S.C.R. 980.

63In an appropriate case, a court may exclude evidence on the basis of a Charter breach occurring after the evidence was obtained, as long as the connection between the evidence and the breach is not too tenuous or remote: R. v. Pino (2016), 2016 ONCA 389, 337 C.C.C.(3d) 402 (Ont. C.A.)

64To achieve exclusion, the accused must satisfy the court that, having regard to all of the circumstances, admitting the evidence would bring the administration of justice into disrepute: R. v. Harper, [1994] 3 S.C.R. 343 at para. 16.

65In the recent Supreme Court decision in R. v. Le, 2019 SCC 34 Justice Brown explains the focus of the s.24(2) analysis, at paragraph 140, in these terms:

Where the state seeks to benefit from the evidentiary fruits of Charter-offending conduct, our focus must be directed not to the impact of state misconduct upon the criminal trial, but upon the administration of justice. Courts must also bear in mind that the fact of a Charter breach signifies, in and of itself, injustice, and a consequent diminishment of the administration of justice. What courts are mandated by s. 24(2) to consider is whether the admission of evidence risks doing further damage by diminishing the reputation of the administration of justice – such that, for example, reasonable members of Canadian society might wonder whether courts take individual rights and freedoms from police misconduct seriously. We endorse this Court's caution in Grant, at para. 68, that, while the exclusion of evidence "may provoke immediate criticism", our focus is on "the overall repute of the justice system, viewed in the long term" by a reasonable person, informed of all relevant circumstances and of the importance of Charter rights." (emphasis in the original)

66In Le, at paras. 141-2, the Court adopts Justice Doherty's summary of the test articulated in R. v. McGuffie, 2016 ONCA 365, at para. 62. I will not restate here as it is well established. See also R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71.

"Obtained in a Manner"

67I have found that the accused's right to counsel was violated when D/C Pyke asked him a question and elicited a response contrary to the duty to hold off. I have also found that his 10(b) rights were likely further infringed through additional eliciting by the officer during the conversation that she had with him prior to his being given the opportunity to speak to a lawyer. However, on either basis, I find that the totality of the exchange D/C Pyke had with Mr. McPhail was obtained in a manner that infringed his rights and attracts consideration of a s.24(2) remedy.

The Seriousness of the Charter-infringing State Conduct

68The seriousness of the Charter-infringing state conduct is informed by the extent to which the police, in violating the Charter, demonstrated a willful or reckless disregard of the individual's Charter rights, or committed an inadvertent or minor violation of the Charter, and whether they acted in good faith.

69A good faith error will be assessed as reasonable in the circumstances, but "is not demonstrated by pointing to mere negligence in meeting Charter standards." The Court should dissociate itself where the departure from Charter standards is major in degree, or where the police knew or should have known that their conduct was not Charter-compliant.

70In this case, the Charter breaches are serious and favour exclusion. D/C Pyke testified that she was well aware of the duty to hold off questioning an arrestee that had sought to avail himself of the right to counsel. Her interactions with Mr. McPhail showed a reckless disregard for his s.10(b) rights.

71It is true that at the time of these events D/C Pyke was a relatively newly minted officer that somewhat unexpectedly ended up playing an important role in this case. However, this does not excuse the conduct. This was not a casual conversation D/C Pyke was having with the accused. She was aware of her duty to keep notes. She was also aware of her duty to hold off in questioning an arrestee and yet she did so anyways.

72The importance of the s.10(b) right can hardly be overstated. It is inextricably linked with other fundamental interests such as the right to silence and the right against self-incrimination. The exercising of this fundamental right is not to be done pro forma or to be implemented when it becomes most convenient. The officer exhibited a careless disregard when it came to the Applicant's Charter rights and her constitutional obligation to respect them. Negligence cannot be equated with good faith. The seriousness of the breach favours exclusion.

The Impact of the Breach on the Charter-protected Interests of the Accused

73In the second branch of the s.24(2) test, the court must assess whether the impact of the breach undermined the interests underlying the right infringed, bringing the administration of justice into disrepute. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute: Grant, supra, at para. 76

74Statements, even if true, which are obtained in violation of a person's rights will almost always, but not automatically, be excluded under s. 24(2) as the breach violates the principle of self-incrimination and would tend to undermine the administration of justice: R. v. Hart, 2014 SCC 52, at paras. 207, 241-2. This branch of the test strongly favours exclusion.

Society's Interest in the Adjudication of the Case on its Merits

75The third prong of the test is focused on whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. An important factor is the reliability of the evidence. Another factor is the importance of the evidence to the prosecution's case.

76The utterances are central to the Crown's case. However, most of the statements attributed to the accused were not recorded verbatim in the officer's notes and some were not recorded at all. Instead, the officer purported to recall at least some of the utterances for the first time at trial. Having regard to my concerns with the overall completeness of the officer's notes, and the reliability of her recall of events, I am not at all certain what was actually said by Mr. McPhail and in what context.

77The focus of the third prong of the 24(2) inquiry, like the previous two, is on "the impact of the state misconduct upon the reputation of the administration of justice". Given the deleterious effect on the accused's Charter right to counsel the long-term disrepute of the administration of justice would be occasioned by the admission of the evidence.

Accessory after the Fact to Attempt Murder

The Law of Accessory After the Fact

78An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape. The charge must allege the commission of a specific offence and the Crown must prove that the alleged accessory knew that the person assisted was a party to that offence.

79This burden will be met if it is proven that the accused had actual knowledge of the offence committed or actual suspicion combined with a conscious decision not to make inquiries which could confirm that suspicion. Where the accused chooses to make no inquiries, speculation as to what the accused would have learned if the inquiries had been made is irrelevant to the determination of the blameworthiness of that accused's state of mind: R. v. Duong (1998), 124 C.C.C. (3d) 394 (ONCA)

The Evidence in this Case

80As indicated, there was evidence called by the Crown as to the extensive media coverage of the case and in particular the efforts of the police to arrest the suspects in the Scarborough shooting. That media coverage made very clear who the police were looking for, and for what reason, and even included photographs of the suspects. There were newspaper articles, daily news alerts, police press conferences, etc. During the press conferences the police made clear to the public not only that they were seeking their assistance in locating the suspects but that anyone involved in assisting the suspects would be committing a criminal offence.

81There is no direct evidence that Mr. McPhail was aware of this press coverage. Ms. Barry, his long-time neighbor, testified that she was certainly aware of the coverage, and the manhunt, and followed it at times on nearly an hourly basis. However, she testified that she did not recall discussing the matter with Mr. McPhail. Therefore, I must infer his knowledge from the totality of the circumstances, in order for the Crown to discharge its burden of proof beyond a reasonable doubt.

82The Crown asks me to infer the accused's knowledge of the fact that Mr. Tarrick Rhoden was not only wanted by the police but that he was wanted in relation to an attempt murder, based in large part on the notorious nature of the underlying offence Mr. Rhoden was wanted for and the ubiquitous media coverage of the manhunt.

83However, there are a number of facts pointing away from an inference of knowledge on this basis. There is no evidence that Mr. McPhail followed the news at all much less that he was aware of the coverage in relation to Mr. Rhoden's case.

84Mr. McPhail was living in a modest home in a relatively secluded area some 275 km north of Toronto. Ms. Barry has known "Vern" all of her life. They went to school together. She testified that Mr. McPhail has a grade seven education and was in the special education class. As far as Ms. Barry knows, he does not get a newspaper. No newspapers (or clippings) were found in his home at the time of the execution of the search warrant. Ms. Barry testified that current events was not the sort of thing that she would necessarily discuss with Mr. McPhail.

85Though there was a modem found in the home during the search there is no indication that it was in service and/or that anyone in that home would have access to the internet. There was a television but there is no evidence before me as to whether or not there was a cable package subscription and/or what channels he was receiving, etc. There was no computer in the home. Ms. Barry testified that Mr. McPhail can use "messenger" and the Crown suggests that this is part of Facebook, thereby demonstrating his access to the internet. However, even if I could infer from this evidence that he had access to the internet, I cannot further infer that he was therefore necessarily following the media coverage concerning the manhunt.

86I would also note that there was no evidence whatsoever adduced as to the relationship, if any, between Mr. McPhail and Mr. Rhoden or how it was that Mr. Rhoden ended up in his home far north of Toronto. I therefore cannot infer, or assume, that they had conversations in confidence as to why it was that Mr. Rhoden was at his home. For these reasons, I find that there is no evidence of knowledge or even wilful blindness on Mr. McPhail's part.

87I wish to make clear that even if I had not excluded Mr. McPhail's statements pursuant to s. 24(2) of the Charter, I would have acquitted Mr. McPhail on the charge of accessory after the fact to attempted murder on the basis that I could attach no real weight to the statements attributed to Mr. McPhail by Officer Pyke again for the reasons set out above. They lack probative value: R. v. Ferris, supra. Further, I could not find on the basis of his utterances that Mr. McPhail was aware of the specific offence Mr. Rhoden was wanted for.

Obstruct Justice

88In R. v. Duong, supra the Court of Appeal determined that the offence of accessory after the fact to an offence requires proof of knowledge of the specific offence. In responding to the Crown's argument that this interpretation of the section would result in allowing individuals to escape justice when they aid someone believing that person has committed crime "x" when in fact the person has committed crime "y", the Court states as follows:

If that is the effect of the present legislation, it is for Parliament to decide whether the statutory prohibition should be expanded. Moreover, it seems to me that the circumstances posited by the Crown would give rise to a charge of obstructing justice under s. 139(2) of the Criminal Code.

89In this case, we only know that Mr. Rhoden was arrested at Mr. McPhail's residence and that Mr. McPhail was not present at the time of the arrest. Again, the Crown relies on the media coverage and the accused's utterances to prove the offence of obstruct justice. For the reasons already stated I have excluded the utterances pursuant to s.24(2) of the Charter and found them to be otherwise lacking in probative value. As well, I find that there is no evidence from which I can infer Mr. McPhail's knowledge of anything based on media accounts or otherwise. For these reasons, I find him not guilty on this count.

Breach of Recognizance

90It is agreed that on August 22, 2018, Vern McPhail was bound by a recognizance dated May 11, 2018. One of the conditions of that recognizance stated "Do not possess – any weapon(s) as defined by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person)". A copy of the recognizance was filed in evidence as Exhibit B to the agreed statement of facts.

91During the course of the search of Mr. McPhail's home the police found a pellet gun behind the door of the bedroom believed to be the one used by him. It was the bedroom beside the dining room area and it is captured in a photograph that is Exhibit 3K. That bedroom looked lived in and some of Mr. McPhail's personal papers were found in it. The pellet gun was not seized during the search, let alone test fired or examined. Mr. McPhail was not seen to use the pellet gun.

92Section 2 of the Criminal Code sets out these definitions:

weapon means any thing used, designed to be used or intended for use

• (a) in causing death or injury to any person, or
• (b) for the purpose of threatening or intimidating any person

and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88, 267 and 272, any thing used, designed to be used or intended for use in binding or tying up a person against their will; [emphasis added]

firearm means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm;

93Is a pellet gun a "firearm"? For some time jurisprudence diverged on whether the Crown need simply prove a pellet gun to be a firearm or whether it must additionally prove that it came within the definition of "weapon" i.e. that is that it was "used, designed or intended for use" for the specified purposes. R. v. Dunn, 2013 ONCA 539, (aff'd 2014 SCC 69) resolved this question. Proof that it is a firearm suffices. As stated at paragraph 66 of the decision:

To conclude, in my view, there is no ambiguity in the definition of firearm in s. 2 when regard is had to the legislative history and the context and scheme of the legislation. Barrelled objects that meet the definition of firearm in s. 2 need not also meet the definition in para. (a) or (b) of weapon to be deemed to be firearms and hence weapons for the various weapons offences in the Code, such as the offences charged against the respondent in this case.

94In Dunn, expert evidence was led that the pellet gun was fully operational and capable of inflicting serious bodily harm. In R. v. Goard, 2014 ONSC 2215, Trotter J., as he then was, sitting as a trial judge, declined to find a pellet gun to be a firearm where it was not proven to be operable within an appropriate timeframe. This finding was notwithstanding evidence that, if operable, it was capable of inflicting serious bodily harm: see paras 121 to 134.

95Although the Crown need not prove a firearm to be a "weapon" it must still prove it to be a "firearm." In this case, in the absence of any evidence whatsoever that Mr McPhail's pellet gun was operable or capable of inflicting the requisite degree of harm, I cannot make that finding.

96Is a pellet gun a "weapon" as defined in s. 2, even though it is not proven to be a firearm? We are again faced with an absence of evidence, this time with respect to how Mr. McPhail used or intended to use the gun, or the purpose for which it was designed. The Crown has therefore failed, subject to the next issue, to prove it was a "weapon."

97The final issue concerns the listing of "pellet gun' as an example of a "weapon as defined by the Criminal Code." The recognizance is awkwardly worded. Its gravamen is to prohibit possession of any weapon "as defined by the Criminal Code." If that is all it said a pellet gun would not necessarily fit within its terms. It would depend on whether there was evidence that satisfied the Code definition of "weapon."

98Had the recognizance prohibited weapons "and pellet guns" Mr. McPhail would clearly be in breach. If it prohibited possession of "weapons" without limiting them to those defined by the Code and then gave pellet guns as an example, Mr. McPhail would also be caught. But it does not do these things. Here the recognizance includes a pellet gun only as an example of a weapon as defined by the Code.

99Since Mr McPhail's pellet gun has not been shown to fit within that definition of "weapon" it cannot be an example of a "weapon". A recognizance cannot simply deem an object to be something that it is not. I am therefore not persuaded that Mr. McPhail's possession of the pellet gun is a breach of the recognizance as worded. That charge must therefore be dismissed.

Conclusions

100I find Mr. McPhail not guilty on all counts.

Released: July 17, 2019

Justice Susan Chapman

Footnotes

1Again, the specific finding is that D/C Pyke asked Mr. McPhail why he did not turn Mr. Rhoden in to the police and he responded that he thought "Cody" was suppose to turn himself in.

2It was not seized, quite properly, because it was not itemized in the appendix to the search warrant.