ONTARIO COURT OF JUSTICE

CITATION: R. v. Plummer, 2026 ONCJ 25

DATE: 2026 01 19

COURT FILE No.: 23-100000487

Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

Donatae PLUMMER

Before Justice C. Faria

Heard on August 5, 6, 7, 8, 2025

Oral Ruling on Voluntariness Voir Dire September 24, 2025

Written reasons released January 19, 2026

Amanda Nash counsel for the Crown

Jordana Goldlist counsel for the accused Donatae PLUMMER

Faria J.:

1On July 19, 2022, Anthony Young was stabbed in Alexandria Park in Toronto.

2Two days later, on July 21, 2022, Donatae Plummer was investigated for possessing a knife in the same park. The Crown alleges he made utterances to the arresting police officers at that time, admitting to stabbing someone in the park days before.

3The Center for Forensic Science (CFS) testing located blood on the knife seized from Mr. Plummer. DNA results could not exclude the blood to be from Anthony Young. On January 5, 2023, Mr. Plummer was arrested and charged with Assault with a Weapon, Aggravated Assault, Attempt Murder and Common Nuisance for the July 19, 2022 stabbing. The Attempt Murder charge has been withdrawn.

4The Crown applied to have the utterance Mr. Plummer made on July 21, 2022, admissible in his trial for the events that occurred on July 19, 2022.

5As the additional motions were waiting to be argued, I provided my ruling on September 24 that the utterance is admissible with reasons to follow. These are my reasons.

I. Legal Principles & The Issue

I. Legal Principles & The Issue

6Statements made to a person in authority are presumptively inadmissible, unless the Crown proves beyond a reasonable doubt that the statement was voluntarily, R. v. Oickle, 2000 SCC 38 (at paras. 20 and 68). This rule addresses both reliability and fairness concerns depending on the context, (Oickle at paras. 32-33)

7The Supreme Court outlined the four requirements for a statement to be voluntary:

a) There cannot be any threats or inducements offered to the person making the statement.

b) There cannot be oppression. A statement cannot be voluntary if the will of the person making it has been overborne.

c) The accused person must have an operating mind.

d) There cannot be any police trickery.

8To these four requirements, the Supreme Court of Canada has also added the absence or presence of a police caution as an issue to consider: R. v. Tessier, 2022 SCC 35 at paras. 78-79.

9The inquiry is to be contextual and be fact-specific: Tessier, at paras. 8, 25, 33, 43, 52, and 65.

10The operating mind consideration requires proof that the accused was capable of making a meaningful choice to speak to the police, and that choice was not improperly influenced by state action: Tessier at para. 51.

11When assessing whether an accused has an operating mind, the court must be satisfied beyond a reasonable doubt that the accused possessed the limited cognitive ability to understand what they were saying and to comprehend that the evidence might be used in criminal proceedings: R. v. Whittle, 1994 SCC 55 at p. 939, R. v. Tessier, at para. 8.

12The Defence concedes the police made no threats, performed no tricks and provided no inducements to persuade Mr. Plummer to make the utterances he made to them.

13The central issue is whether the Crown has proven beyond a reasonable doubt that Mr. Plummer had an operating mind when he made the utterances the Crown wants to adduce at trial. The Defence also asserts a caution was not provided to Mr. Plummer.

II. Position of the Parties

II. Position of the Parties

14The Crown submitted the evidence proves beyond a reasonable doubt that Mr. Plummer understood what he was saying, understood he was saying it to police, and was cautioned by the police as to what use what he said could be made. She argued that though Mr. Plummer exhibited signs of a mental health condition, he had the requisite degree of cognitive ability required by Whittle. The Crown thus submitted Mr. Plummer had an operating mind, the utterance was voluntary, she has met her onus, and the statement should be admitted at trial.

15Counsel for Mr. Plummer vigorously opposes the admission of the utterance. She submits it is clear her client was experiencing a mental health crisis, did not understand what he was saying, nor appreciate the jeopardy he was in.¹

16In oral argument the Defence strenuously submitted Mr. Plummer was never cautioned that anything he said could be used as evidence against him. This, Defence submitted is a fatal flaw, and the Crown has not met its onus beyond a reasonable doubt. She submits that the Crown has not proven Mr. Plummer had an operating mind at the time he made the utterance to police on July 21, 2022.

III. Summary of Evidence

III. Summary of Evidence

17The Crown called 4 police officers and filed their body-worn camera video as well as In-Car-Camera-System (ICCS) video. The Defence called no evidence.

18Police responded to a 911 call for an aggressive male with a knife in Alexandria Park on July 21, 2022 at about 8 p.m. The park is just south of Dundas St. W. and Bathurst St. Officers Riley Kovacic and Alexandru Kis arrived first and immediately located the man who matched the description provided. They stopped him and he began to struggle. As they were arresting him, Officer Joseph Underhill attended to assist. He saw and seized a silver steak knife in the man’s pocket. He placed it on the hood of a scout car. The knife was later placed in an evidence bag by Officer Kis.

19The arrest did not go smoothly. The male struggled, tensed up, clenched and tried to turn around. He was soon taken to the ground, handcuffed, searched and placed in the back of the scout car.

20Officer Kovacic gave the male his rights to counsel. The man did not respond. He would also not identify himself, repeatedly saying the officers knew who he was, though they repeatedly told him they did not. The officer told the male he was being recorded when he told the officers they would lose their life for this, among other threats, and non-sensical mutterings. A fourth officer, P.C. Ankur Patel, was also on scene to assist.

21It took almost an hour to identify the male as Mr. Plummer.

22He was originally charged with weapons dangerous, and then with the added offence of obstruct justice. At one point during the investigation into his identity, Mr. Plummer said to the officers: “Do you realize I stabbed a ni**a² in the park the other night.”

23The entirety of the police interaction with Mr. Plummer is captured on the body-worn cameras (BWC) of the 4 officers who interacted with him from the moment he was detained and arrested, to the moment he was transported to 14 Division. Additional interactions were captured by the ICCS while he sat in the back of the scout car. All 4 BWCs were filed as exhibits as was the ICCS video. All four officers testified on the voluntariness voir dire.

24The video evidence and the testimony of the officers showed numerous efforts were made to identify Mr. Plummer such as:

i. Officers searching police databases.

ii. Officers Kovacic, Patel and Kis looked through the items in the cart the male was pushing just before he was arrested to find something to identify him. They found nothing.

iii. Officer Kovacic opened the scout car door and told Mr. Plummer he could be released if he identified himself. Mr. Plummer swore at him, said he will die by lethal injection and told him to shut the door.

iv. Officer Kovacic tried again by opening the scout car door and telling Mr. Plummer he could not keep his cart for him if he did not have his name. Mr. Plummer told him to put the cart in the trunk of the scout car. Officer Kovacic said it did not fit. Mr. Plummer argued with him about it.

25Mr. Plummer was repeatedly threatening, hostile, and belligerent with the officers specifically and generally, even when he was non-sensical.

26All 4 officers heard Mr. Plummer tell Officer Kovacic, while he was sitting in the back of the scout car, that he had stabbed someone in the park the other night. All 4 officers testified they took note of this utterance.

27Officer Kovacic, to whom Mr. Plummer made the utterance, asked him about it. Officer Kovacic testified this statement made him suspicious because he was aware of a recent stabbing in the same park recently. In addition, Mr. Plummer was in possession of a knife and acting aggressively. Officer Kovacic passed on the information to CIB to be investigated. He did not believe Mr. Plummer’s jeopardy changed without more information, and he did not believe he had reasonable grounds to arrest Mr. Plummer for that stabbing.

28Officer Underhill was also aware of an open investigation for a stabbing that had occurred in Alexandra Park recently. He too informed his supervisor of the utterance to be investigated. He too did not believe he had reasonable grounds to arrest Mr. Plummer for that stabbing but informed his supervisor of the utterance.

29All 4 officers also noted Mr. Plummer had mental health issues:

i. Officer Patel noted Mr. Plummer to be unhoused with mental health issues. He testified Mr. Plummer was sometimes incoherent and sometimes had moments of clarity.

ii. Officer Kis perceived Mr. Plummer to be hostile to the police because he refused to identify himself, ignored them, or swore that them, threatened them, told them they would burn and that they were white devils.

iii. Officer Underhill testified Mr. Plummer spoke to himself while in the back of the scout car, and he thought Mr. Plummer was agitated and frustrated.

iv. Officer Kovacic testified he thought Mr. Plummer was mentally unwell. He said Mr. Plummer had conversations with himself, spoke in the third person, and behaved oddly. He thought that Mr. Plummer sometimes did not make sense, and that he could have been in crisis, but he did not know Mr. Plummer’s mental health baseline and so was unsure. He also acknowledged that at one point he considered taking Mr. Plummer to CAMH in case he could be identified there.

30All 4 officers acknowledged that Mr. Plummer made odd references, such as they would die by lethal injection, they would be shot, they were going to lose their lives for this (arrest), and they were kidnapping him. Mr. Plummer said they were accountable to God; they were white devils and they would go to hell. None of the officers took Mr. Plummer’s threats seriously, and he was not charged with any threats.

31None of the 4 officers believed Mr. Plummer was a danger to himself or others, and they all testified he could not be apprehended under the Mental Health Act.

32The 3 officers who interacted directly with Mr. Plummer, Underhill, Kis and Kovacic, all testified they believed Mr. Plummer understood they were police officers, he was speaking to police officers, and he understood what he was saying, though each one had a different reason to so believe.

33Officer Kovacic’s evidence is noteworthy. He testified that Mr. Plummer understood him when he read him his right to counsel, because although Mr. Plummer did not acknowledge him when he read him his rights the first time, Mr. Plummer responded that he had already done this when Officer Kovacic read him his rights to counsel the second time for the obstruct charge. He also noted Mr. Plummer referred to being arrested as being abducted which communicated he understood he was in custody.

IV. Findings and Analysis

IV. Findings and Analysis

34The BWC evidence substantiates all the officers’ evidence, both in terms of what happened and when it happened, as well as what was said, by whom to whom and when. Inconsistencies, if any, were minor in nature, and not relevant to the core of any of the officer’s narratives.

35I find Officers Kis, Kovacic, Underhill and Patel to be credible and reliable witnesses. I accept the entirety of their evidence.

36The evidence of the officers, and the BWC evidence, in its totality, demonstrates that Mr. Plummer at the time of his arrest on July 21, 2022, displayed signs of some sort of mental health condition. He spoke to himself, he referred to unrelated matters, he was repetitive, he spoke in the third person and spoke of incidents that did not occur.

37All 4 officers noted this condition, and none of the 4, who spent at least about an hour with, around and listening to Mr. Plummer believed themselves to have the grounds to apprehend him under the Mental Health Act.

38The Defence made much of the fact that at one point Officer Kovacic considered taking Mr. Plummer to CAMH, the Centre of Addiction and Mental Health. However, that discussion was in the context of “maybe” CAMH knew Mr. Plummer and could identify him, not that Mr. Plummer was to be apprehended and taken to CAMH for mental health reasons.

39There is no evidence of a mental health crisis. There is no evidence of a cognitive impairment. There is no evidence of substance use that would negate an operating mind.

40Although some of what Mr. Plummer said to the officers was grandiose, extreme, and not necessarily linear in pattern, which is a sign of a mental health condition, in the totality of the context he was in, what Mr. Plummer said demonstrated an understanding of his circumstances, an opinion about those circumstances, and the pursuit of a goal.

41Mr. Plummer knew he was arrested by police officers. He did not believe their authority to be legitimate. He threatened them with consequences for their actions. He told them he was important and dangerous, and they would pay for their conduct. He heard and disregarded his right to be silent and the caution. He acknowledged directly he heard his rights were provided twice, and his rights were legal in nature, though he disagreed that the officer knew what he was doing.

42In Whittle, the SCC stated that:

The operating mind test, therefore, requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused. Indeed it would be hard to imagine what an operating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make active choice, the relevant test is: Did the accused possess an operating mind? It goes no further and no inquiry as to whether the accused is capable of making a good or a wise choice or one that is in his or her interest.

43Mr. Plummer’s far-fetched ideations that the officers would be killed by lethal injection, or that officers had been killed, does not displace, nor diminish the evidence that he knew he was speaking to police, knew he was threatening them, and that they had authority over him to use what he said against him, when he voluntarily told them he was a dangerous person, including one example which was that he had stabbed someone in the park a few days before.

44Mr. Plummer’s utterance made sense in the context he said it in, for the purpose he said it for. It was reality based. The utterance was not a wise choice, nor one that was in his interest. But it was relevant and indicative of one of his purposes when speaking to the police: to demonstrate he was important; he was dangerous; the police should take him seriously; and they would pay for arresting him.

45I find Mr. Plummer had an operating mind. He was aware and repeatedly demonstrated that he knew he was speaking to police officers, knew they wanted him to identify himself, decided not to tell them his name, and understood he was arrested and detained. He understood his rights were read to him, and that he has legal rights.

46Without identifying all the evidence in support of my finding, I refer to the following:

i. Mr. Plummer referred to the police officers as police officers when they call him “Bro” and refers to being taken to the police station when he is searched on the ground.³

ii. When repeatedly asked for his name, Mr. Plummer responded the officers knew him. He was not wrong. Officer Kis is heard on the ICCS video advising his colleague that he recognizes Mr. Plummer but does not know his name.⁴

iii. Mr. Plummer understood he was detained in custody. He felt unjustifiably arrested and said to the officers “why are you kidnapping people on a daily basis and calling it arresting?”⁵

iv. When provided with his right to counsel for the second charge of obstruct justice, Mr. Plummer responded this was the “second time” the officer had done this, and the officer did not know the “Canadian Criminal Code”. This is a clear indication he heard his rights to counsel the first time and understands this is within a legal context. He says: “It’s illegal under the law of life. Canada doesn’t control the world, God does.” ⁶

47Mr. Plummer chose when to speak to officers and when not to.

i. At times, he responded to officers asking for his name, telling them they knew him, and refused to respond at other times.

ii. He told officers what he wanted. For instance, when officers opened the scout car door to speak to him, he became angry, threatened them, and told them to close the door.⁷

iii. He coherently discussed matters that he cared about, such at the fate of his cart. When Officer Kovacic told Mr. Plummer he needed his name so could make sure Mr. Plummer could get his cart back, Mr. Plummer told the officer to put the cart in the trunk of the scout car. When the Officer said there was not enough space, Mr. Plummer disagreed, looked back, and said there was. When Officer Kovacic said he would not put the cart there, Mr. Plummer decided to end the conversation and told the officer to close the scout door.⁸

48Many of Mr. Plummer’s hostile and belligerent insults, though far-fetched, were also indicative of his understanding of police authority, and his views that this authority is illegitimate. For instance, just after the utterance at issue, Mr. Plummer told police that if they don’t kill him, they will die for this, referring to what the police are doing to him.⁹

49Mr. Plummer was aware of current social/racial dynamics and world events. For instance:

i. One of the officers called Mr. Plummer “Bro” during his interaction with him. Mr. Plummer took issue with the term of familiarity and told the Officer “Don’t call be brother and Caucasian male.”¹⁰ The Officer presents as Caucasian and Mr. Plummer presents as a racialized man. The interaction demonstrated an understanding of personal identity, racial context and an assertion on how to be named.

ii. Mr. Plummer examined the name of Officer Kovacic and said “You Ukrainian? Imagine if I send you back to Eastern Europe and how bad they would torture you…Fuck..ha…you’re a dead man”.¹¹ Mr. Plummer was attempting to identify the historic origin of the officer’s name with a country of origin currently engaged in war in an attempt to communicate him harm.

50Finally, regarding the issue of a caution: Ms. Goldlist for Mr. Plummer confidently submitted that Mr. Plummer was never cautioned, and this is a fatal flaw for the Crown. This submission is incorrect on both counts.

51First, Mr. Plummer was cautioned three times before he made the utterance (and at least once after) as follows:

i. When Mr. Plummer was first detained and before he is arrested, when Officer Kovacic states: “Hey buddy, just so you know, everything’s -uh- being recorded, okay? So, anything you say can be used as evidence”. ¹²

ii. A second time after Mr. Plummer is searched, given his right to counsel, and is informally advised he is being recorded when Officer Kovacic states: “..can be used as evidence, okay? You understand that? Everything is being recorded”.¹³

iii. A third time after providing Mr. Plummer with his right to counsel, Mr. Plummer objects to being photographed by saying “Don’t take pictures of me” and Officer Kovacic confirms Mr. Plummer is being photographed, audio recorded, and video recorded by about 4 cameras and that this can be used against him.¹⁴

52Therefore, I find Mr. Plummer was cautioned by police before he made the utterance.¹⁵

53Second, even if Mr. Plummer had not been cautioned, the absence of a caution is not a fatal flaw. The Supreme Court decided in Tessier that even though Mr. Tessier was not cautioned when, in a police station, he was speaking to police asking him questions about the death of his friend, a death they were investigating, the absence of a caution was not determinative of whether Mr. Tessier’s statement was voluntary. The court found his statements were voluntary. The accused exercised a free and meaningful choice to speak to police and was not unfairly denied his right to silence. Specifically, the Court stated at para 12:

But to be clear: insisting on a caution in all circumstances where a suspect is questioned by police or requiring that the Crown prove what amounts to a waiver of that caution, are not conditions of voluntariness. In my respectful view, the Court of Appeal mistakenly imposed this high standard based on proof of actual, subjective knowledge. Where knowledge can be shown, courts have forgiven the lack of caution, but just as the caution is not obligatory, proof of actual knowledge of the right to silence or the consequences of speaking to prove voluntariness is not either.

54In this case, Mr. Plummer was not only read his rights to counsel, but he was also cautioned. He was not being questioned, and on the totality of the evidence, he demonstrated and exercised a free and meaningful choice as to when he wanted to speak to police, when he did not, what he wanted to say, and when he wanted to say it. He consistently chose to speak to the officers in a rude, insulting, and threatening manner. He did so in an attempt to intimidate the officers for arresting him. He told them they would pay for their conduct, and that they did not know who they were dealing with. In essence, the utterance at issue was in furtherance of this purpose: to communicate that he is a powerful and dangerous person.

V. Conclusion

V. Conclusion

55For the above stated reasons, the utterance Mr. Plummer made to police on July 21, 2022, that he had stabbed someone in the park the other day is admissible at trial.

Footnotes

1. 1Cases provided in support were R. v. Tessier, 2022 SCC 35, R. v. Singh, 2007 SCC 48, R. v. Innacchino, 2023 ONSC 1105, R. v. Fernandes, 2015 ONSC 4670, R. v. Patridge, 2007 NUCJ 13, R. v. Menezes, 2001 28426 (ON SC), [2001] O.J. no. 3758, R. v. Land, 2012 ONSC 5372, R. v. M.D. 2012 ONCA 841, and R. v. Zakarias, 2018 ONSC 4753.
2. 2This term is quoted once for accuracy. The term used henceforth is “person”.
3. 3Exhibit 9: BWC of Officer Kovacic at 20:29, and at 20:06:22.
4. 4Exhibit 9: BWC of Officer Kovacic at 20:15:46 and Exhibit 8: ICCS Front Seat at 20:15:46.
5. 5Exhibit 9: BWC of Officer Kovacic at 20:38:34.
6. 6Exhibit 7: ICCS Backseat at 20:38:34, 20:55:24, 20:56:15.
7. 7Exhibit 7: ICCS Backseat at 20:29:58.
8. 8Exhibit 9: BWC of Officer Kovacic at 20:28:13 and 20:28:48.
9. 9Exhibit 7: ICCS Backseat at 20:39:39.
10. 10Exhibit 9: BWC of Officer Kovacic at 20:29:10.
11. 11Exhibit 7: ICCS Backseat at 20:39:23.
12. 12Exhibit 9: BWC of Officer Kovacic at 20:04:20.
13. 13Exhibit 9: BWC of Officer Kovacic at 20:09:06.
14. 14Exhibit 9: BWC of Officer Kovacic at 20:28:59.
15. 15There is also a 4th caution when Mr. Plummer is arrested for obstructing police after making the utterance at issue, Exhibit 7: ICCS Backseat at 10:56:50.