R. v. Plummer, 2026 ONCJ 138

ONTARIO COURT OF JUSTICE

CITATION: R. v. Plummer, 2026 ONCJ 138 DATE: 2026-03-12 COURT FILE No.: 23-100000487 Toronto Region

BETWEEN:

His Majesty the King

— AND —

Donatae Plummer

Before: Justice C. Faria Heard on: January 23, 2026 Reasons for Ruling on Charter s.10(b) Motion released on: March 12, 2026

Counsel: Amanda Nash, counsel for the Crown Jordana Goldlist, counsel for the accused Donatae Plummer

Faria J.:

I. Introduction:

1On July 21, 2022, Donatae Plummer was investigated for possessing a knife in Alexandra Park in downtown Toronto. He was arrested for possession of a weapon for a dangerous purpose and obstruct justice for not identifying himself. During the hour-long investigation into his name, and while still at the scene, Mr. Plummer made an utterance that he had stabbed a person in the park the other night.

2Anthony Young had been stabbed in that park two days before, on July 19, 2022. Testing of the knife seized from Mr. Plummer led to the finding of DNA that could not be excluded to have come from Mr. Young.

3Mr. Plummer was charged in January 2023 with assault with a weapon, aggravated assault, attempt murder and common nuisance for the stabbing of Anthony Young. The attempt murder charge was withdrawn, and the trial commenced in August 2025 on the other charges.

4A voluntariness voir dire was held to determine whether Mr. Plummer’s utterance was voluntarily made and admissible at trial. I made an oral ruling on September 24, 2025, that it is admissible and released my written reasons on January 19, 2026: R. v. Plummer, 2026 ONCJ 25.

5The matter then proceeded on January 23, 2026, with a Defence application that Mr. Plummer’s s.10(b) Charter right was violated and the utterance made by Mr. Plummer should be excluded per s.24(2).

6These are my reasons on the s.10(b) application.

II. Position of the Parties

7The Defence submits that two officers proceeded to elicit evidence from Mr. Plummer after he made the utterance, which changed his jeopardy without re-advising him of his rights to counsel, ensuring he understood his rights, and facilitating contact with counsel for advice. This was in violation of Mr. Plummer’s s.10(b) right. She therefore submits the utterance should be excluded as the s. 24(2) remedy.

8The Crown submits there was no violation. The officer’s questions were exploratory, did not become investigatory and therefore no duty to re-advise Mr. Plummer of his right to counsel arose. In the alternative, she submits if a violation is found, pursuant to the Grant analysis, the utterance should not be excluded.

III. Legal Principles

9The onus is on the Applicant to demonstrate a breach of a Charter right on a balance of probabilities.¹

10Section 10(b) of the Charter requires that upon arrest or detention, the Applicant has the right to retain and instruct counsel without delay and to be informed of that right.

11Police have three duties:²

i. to inform the detainee of his/her/their right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

ii. if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

iii. to refrain from eliciting evidence from the detainee until he/she/they have had a reasonable opportunity to consult with counsel (again, except in cases of urgency or danger).

12If a breach is found, the court must balance the following factors to determine whether the impugned evidence should be excluded or not:³

i. The seriousness of the conduct that led to the breach.

ii. The impact of the breach on the Applicant.

iii. Society’s interest in a trial on the merits.

IV. Evidence

13The Crown called 4 police officers and filed their body-worn camera (BWC) video as well as In-Car-Camera-System (ICCS) video. The Defence called no evidence.

14It is not disputed that Mr. Plummer was detained and arrested on July 21, 2022, at about 8:00 p.m. in Alexandra Park, for possession of a weapon after a 911 call for an aggressive male with a knife. Police seized a knife from his pocket. Police officers asked Mr. Plummer his name, and Mr. Plummer refused to provide it. Mr. Plummer was given his rights to counsel and the 4 police officers involved proceeded to try and identify him.

15For almost an hour, Mr. Plummer sat in the police scout car and interacted with the officers as captured on both BWCs and ICCS. He told police officers they were going to die for what they were doing, they were going to lose their lives, they were accountable to God, they were white devils and would go to hell, among other threats, and many non-sensical things laced with profanity. Mr. Plummer engaged in conversation with police about the storage of his cart full of miscellaneous items, about not wanting to be photographed, and about what they would suffer as a consequence of arresting him as well as intermittently speaking to himself incoherently while in the scout car.

16One thing Mr. Plummer did say to the police at 8:39 p.m. as heard in the ICCS footage, was “I stabbed a ni**a⁴ in the park the other night.”

17Officer Riley Kovacic then asked Mr. Plummer “who did you stab?” and “who’d you stab in the park?”⁵ Officer Kovacic also asked, “you were talking about the other night, what were you saying?” Officer Kovacic asked Mr. Plummer about his utterance 7 or 8 times.

18Mr. Plummer did not answer any of the questions, and at one point told the officer “Does it look like I’m snitching to you?”

19Officer Kovacic was aware there had been a recent stabbing in Alexandra Park, as was Officer Underhill. Both noted the utterance. They informed CIB of the utterance when they called 14 Division to try and determine Mr. Plummer’s identity.

20Officer Kovacic testified the utterance made him suspicious of Mr. Plummer because Mr. Plummer was in the same park as the stabbing, and he had a knife, but he did not believe Mr. Plummer’s jeopardy changed without more information. He did not believe he had reasonable grounds to arrest Mr. Plummer for that stabbing at that time.

21Neither Officer Kovacic, nor any other officer informed Mr. Plummer he was being investigated for the stabbing. Neither Officer Kovacic, nor any other officer, advised Mr. Plummer that his jeopardy may have changed. Neither Officer Kovacic, nor any other officer, re-advised Mr. Plummer of his rights to counsel after he made the utterance.

22Officer Kovacic did re-advise Mr. Plummer of his right to counsel when he charged Mr. Plummer at 8:55 p.m. with the added offence of obstructing justice for not having provided police with his name.

V. Analysis

23I must determine if Mr. Plummer’s jeopardy changed after he made the utterance. A change in circumstances must be objectively observable to trigger additional implementational duties for police per Sinclair.⁶

24The Crown submits Officer Kovacic’s questions, “who did you stab?”, were repetitive, but only lasted 2.5 minutes, were exploratory in nature, and did not rise to the level of an investigation obliging the Officer to reiterate Mr. Plummer’s s.10(b) rights. She analogizes the circumstances to those in Whittle.⁷

25The Court of Appeal in Sawatsky.⁸

“The distinction between exploratory questions preceding an investigation and questions which are part of an investigation can be difficult to make. In many situations, there is no clear demarcation. Exploration flows seamlessly into investigation.”

26In this case, the circumstances under review took place unexpectedly, and lasted under 3 minutes.

27In both Sawatsky and Whittle, the officers receiving unexpected information volunteered by Ms. Sawatsky and Mr. Whittle, did not have knowledge of the offences either person was referring to in their unsolicited statements.

28The Court of Appeal held that the officer in the circumstances of Sawatsky was “entitled to attempt to elicit some further information before deciding whether an investigation of that fire was appropriate” when Ms. Sawatsky spoke of setting a fire in Kingston, when she was being arrested for setting a fire in Peterborough.

29The Supreme Court held that when Mr. Whittle was arrested for unpaid fines and then told officers about a murder and three robberies, the officers were unaware of such a murder and robberies. They needed details to verify if Mr. Whittle’s claims should be taken seriously.

30The case before me is distinguishable. Officer Kovacic specifically testified that Mr. Plummer’s utterance caught his attention because he was indeed aware of a recent, ongoing investigation of a stabbing two days earlier in the same park as Mr. Plummer was being apprehended.

31Officer Kovacic was honest when he testified that he was suspicious that Mr. Plummer stabbed someone after he made the utterance.

32Mr. Plummer was in the very park the stabbing had occurred in. Mr. Plummer was in possession of a knife. The 911 caller had described Mr. Plummer as aggressive. Mr. Plummer had just stated he had stabbed someone in the park the other night.

33Officer Kovacic was not exploring the meaning of Mr. Plummer’s utterance, once he made it. Officer Kovacic embarked on an albeit very short, but focused interrogation regarding the investigation of the July 19th stabbing. The repetitive questions were meant to elicit evidence as to whether Mr. Plummer was referring to the stabbing incident of July 19th, or another stabbing incident. Either way, Mr. Plummer’s jeopardy changed from that of a person arrested for possession of a weapon, to that of a person being investigated, in fact questioned about the much more serious offence of a stabbing. In this circumstance, Officer Kovacic’s investigative focus obviously changed.

34I find a duty to re-advise Mr. Plummer of his right to counsel was triggered after he made the utterance, and Officer Kovacic had a duty to hold off questioning Mr. Plummer.

35Officer Kovacic neither re-advised Mr. Plummer of his s.10(b) right to counsel and concurrent right to silence in regard to the stabbing investigation, nor did Officer Kovacic hold off from eliciting evidence from Mr. Plummer. In fact, his questions were exactly about who had Mr. Plummer stabbed.

36Having found a s.10(b) breach, I now turn to the s.24(b) analysis. The three factors I must balance to determine if the utterance should be excluded or not, are:

i. The seriousness of Officer Kovacic’s Charter infringing conduct.

ii. The impact of the breach on Mr. Plummer’s s. 10(b) rights.

iii. Society’s interest in adjudicating the case on its merits.

37Firstly, the utterance sought to be excluded was not “obtained in a manner” that breached Mr. Plummer’s rights.⁹ It was an unsolicited, voluntary, spontaneous statement made by Mr. Plummer of his own accord and not the product of any police conduct. The breach occurred immediately after the utterance.

38However, Mr. Plummer need not establish a strict causal nexus between the Charter breach and the obtaining of the evidence. The connection between the breach and the utterance in question can be “temporal, contextual, causal or a combination of the three”.¹⁰ As the breach was within minutes of Mr. Plummer’s utterance, it has both a temporal and contextual connection.

39The breach of a s. 10(b) right can be serious, depending on the circumstances.

40Officer Kovacic’s reaction to Mr. Plummer’s unexpected utterance appeared almost instinctive. It was an immediate pivot from the investigative search of Mr. Plummer’s identity for the charge of possession of a weapon, to responding to his utterance with questions about who he had stabbed. Officer Kovacic’s questioning was focused, but brief, yielded no results and almost as quickly abandoned.

41Though he did not re-advise Mr. Plummer about his rights in regard to the stabbing, Officer Kovacic had already provided Mr. Plummer with his right to counsel in regard to the knife charge about half hour before and provided them again about half hour after the utterance when he decided to arrest Mr. Plummer for obstruct justice. Officer Kovacic acted in good faith throughout. All the officers who interacted with Mr. Plummer were patient and courteous in the face of Mr. Plummer’s belligerent, often inconsistent and incoherent behaviour laced with profanity and threats, likely symptoms of a mental illness.

42Given the circumstances, context and nature of the breach, I find it to be on the lower end of the continuum of serious breaches. It does not favour exclusion of the utterance.

43In regard to the impact of the breach, Mr. Plummer had already been informed of his right to counsel about half hour earlier when he was arrested for possession of a weapon and had chosen not to respond to the question of whether he wanted to avail himself of counsel. He was informed several times he was on camera and recorded. He responded he did not want to be photographed. Mr. Plummer made an unsolicited voluntary utterance that changed his jeopardy, and though he should have be re-advised of his rights as soon as he did so, he did not respond to Officer Kovacic’s questions. No evidence was elicited because of the breach.

44I find the impact of the breach to have been minimal and does not weigh in favour of the exclusion of the utterance.

45Finally, society has a strong interest in the determination of the case on its merits. A violent stabbing in a public park is a serious offence. One of, though not the only, key piece of evidence in the prosecution is Mr. Plummer’s utterance. The reliability of the unsolicited utterance having been made prior the breach, is not tainted by the breach.¹¹ This factor too weighs in favour of inclusion rather than the exclusion of the utterance.

46The balancing of all three factors leads to the conclusion that Mr. Plummer’s utterance will not be excluded from admission at trial.

VI. Conclusion

47Although I find a breach of Mr. Plummer’s s.10(b) right to counsel, as he was not re-advised of his right after having made an utterance, after balancing the three Grant factors, and performing the s. 24(2) analysis, I conclude the utterance is admissible at trial.

Footnotes

1. 1R. v. Collins, [1987] 1 S.C.J. 265 and R. v. Prosper, 1994 65 (SCC), [1994] 3 S.C.R. 236 at para. 5.
2. 2R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173 at para. 18.
3. 3R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 71.
4. 4This term is quoted once for accuracy. The term used henceforth is “person”.
5. 5Exhibit 7: ICCS at 20:39:10
6. 6R. v. Sinclair, 2010 SCC 35, 2010 S.C.C. 35 at para. 55.
7. 7R. v. Whittle, 1994 55 (SCC), [1994] 2 S.C.R. 914, at para. 58.
8. 8R. v. Sawatsky, 1997 511 (ON CA), [1997] O.J. No. 3561 at para. 35.
9. 9R. v. Pileggi, 2021 ONCA 4, at paras. 109, 120.
10. 10R. v. Wittwer, 2008 SCC 33 at para. 21.
11. 11The reliability of the utterance given the context it was made and how, is to be determined at trial.