Court File and Parties

COURT FILE NO.: CR-18-4167 DELIVERED ORALLY: January 9, 2019

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – Dennis Christian Bercian, Erick Alexander Bercian, Dustin Scott Schuh, and Daniel Hugh Shaw Accused

Counsel: Walter Costa and Jonathan Lall, for the Crown Frank P. Retar, for the Accused, Dennis Christian Bercian Shannon L. Pollock, for the Accused, Erick Alexander Bercian Daniel Brodsky, for the Accused Dustin Scott Schuh Aaron Prevost, for the Accused, Daniel Hugh Shaw

HEARD: November 21 and 22, 2018

RULING ON ADMISSIBILITY OF ERICK BERCIAN’S STATMENT

pomerance J. :

Introduction

[1] Erick Bercian is charged, along with three other individuals, with first degree murder. He challenges the admissibility of a statement he made to police some time before he was arrested. Two questions arise:

1. Was the statement voluntary? If the Crown has not proved voluntariness beyond a reasonable doubt, the statement must be excluded from the trial; and

2. Was Mr. Bercian detained at the time he spoke with the police? The Crown acknowledges that, if Mr. Bercian was detained, the police breached ss. 10(a) and 10(b) of the Charter and the statement should be excluded under s. 24(2) of the Charter.

[2] I need not answer the first question, given my answer to the second. I find that Mr. Bercian was detained at the time he was questioned by the police, that his rights under ss. 10(a) and 10(b) of the Charter were infringed, and that the statement must be excluded under s. 24(2). Police described their encounter with Bercian as a non-detention. They told Bercian that he was free to leave any time. However, the reality was quite different. Police were determined to transport Bercian to the police station, to elicit incriminating evidence from him; and keep him in the interview room until they were done. A reasonable person in Bercian’s shoes would have perceived that he had no option but to attend at the police station, answer questions, and remain until the officer was finished the interview.

[3] I will elaborate on this conclusion in the reasons that follow.

EVIDENCE ON THE VOIR DIRE

Paterson prepares to interview the accused

[4] Police began investigating the homicide on October 19, 2016, the day of the incident. At that time, the case involved a serious assault. The victim had not yet died. Constable Paterson was one of the investigators in this case. He had several tasks to carry out on October 27, 2016, one of which was to conduct an interview of the accused, Erick Bercian.

[5] When asked in-chief why the police wanted to speak to Bercian, Officer Paterson testified that, on the basis of video surveillance, Bercian had been identified as someone who was possibly around when the incident occurred. The officer testified that police knew nothing else at that time. Bercian was just a person of interest. During cross examination, it came to light that police knew that Bercian had been in the building where the homicide took place at the relevant time, and associating with people that they believed were involved in the crime. It also came to light that police knew Mr. Bercian to drive a red vehicle, the same colour as the vehicle used to kidnap the victim.

[6] Paterson attended at Bercian’s residence on October 27, 2016. He knocked but got no answer. He did not leave a business card or a message asking Bercian to contact him. As he put it, he does not like to “give someone a heads up if I’m doing an interview.” Instead, police sent two officers from the Drugs and Guns Unit – Constables Harmon and Pope – out to locate Bercian and bring him to the station.

Officers bring Mr. Bercian into the station

[7] Constables Harmon and Pope testified that they attended a briefing in the late afternoon of October 27, 2016. The officers had no notes or recollection of what they were told. They attended at Bercian’s home at 7:30 p.m. They knocked on the door and once inside had a conversation with Mr. Bercian. Both officers believe that they asked Mr. Bercian if he would come downtown to speak to detectives about a homicide. However, neither officer could attest to the words they used when speaking to Mr. Bercian. They did not have any notes and did not have any memory, attributing this to the passage of time. Both officers testified that, when they mentioned the case, Bercian said something about his wife’s friend being the granddaughter of someone who had been arrested.

[8] Bercian told the officers that he needed some time before he could leave. He was putting his younger children to sleep and needed to arrange child care. Harmon testified that Bercian asked for 45 minutes. Pope testified that Bercian asked for an hour. The officers accepted this. They left the house and sat in their vehicle, outside the residence, for about 45 minutes, until the accused was ready. The officers were parked on the street where they could see Bercian’s house. The police station was six minutes away by car. When asked why they did not leave and come back, Harmon testified that he was concerned that it they dealt with something else, it might take longer than they thought. He said that the officers wanted to remain available.

[9] When Bercian was ready, the officers transported him and his wife to the station. According to Harmon and Pope, they “offered to given them a ride”. Harmon did not recall whether the accused had his own vehicle. He testified that they offered to transport to make it easier for everybody. Pope testified that he was not aware if they had other means of transportation. The accused and his wife sat in the back of the van with Harmon. Pope drove. They engaged in small talk during the drive.

[10] Harmon and Pope were not involved in the investigation. They were aware of basic details of the event. They did not know why detectives wished to speak with Bercian. Harmon and Pope were asked what they would have done if they saw Mr. Bercian leaving his house. They said that they would have contacted the detectives on the homicide case to alert them of Mr. Bercian’s departure and gotten on with their night.

Bercian is turned over to Constable Paterson

[11] When they arrived at the police station, Harmon and Pope escorted Bercian and his wife to the third floor, where the major crimes unit was located. They waited a short time until Officer Paterson came out and led Bercian into an interview room.

[12] Paterson had prepared a strategy for his interview of Bercian. Among other things, he wanted to stage a mock discovery of the victim’s death. Paterson had learned earlier that day that the victim had died. He decided to keep this information from Bercian until he reached a strategic point in the interview. Paterson acknowledged in cross-examination that he did this deliberately, to see how Bercian would react to the news.

[13] The interview went on for over an hour. Bercian expressed the desire to leave on four occasions. On each occasion, his request was effectively denied or ignored.

[14] I will refer in more detail to the content of the interview below, when I come to the legal analysis under ss. 9 and 10 of the Charter.

THE ACCUSED’S EVIDENCE

[15] The accused filed an affidavit setting out his evidence in-chief on which he was cross-examined. According to the affidavit, two officers attended at the accused’s home on October 27, 2016, but would not tell him why they were there. According to the accused, the officers said that they wanted to ask some questions, and that he needed to go with them downtown as detectives wanted to speak with him.

[16] The accused told them no and they repeated that he needed to go with them and answer questions. The accused testified in his affidavit that:

They said it would be better for me if I just co-operated. They said something like “think of your wife; think of your children”. They used a tone that was intimidating. They said this in front of my wife and children.

I felt as though I had no choice but to go with them. I felt as though I had to co-operate or it would be used against me in some way.

[17] During cross examination, the accused testified that, when the officers told him to think of his children, he perceived this as a threat to call the Children’s Aid Society and tell them that he was a person of interest. He was afraid that he would lose his children.

[18] He told the officers that he needed about an hour to arrange for someone to watch his children. The accused testified that the officers would not let him take his own vehicle to the station, saying that they preferred to take him and his wife in their vehicle. It was a mini-van that had front seats and back seats, but no middle seats.

[19] The accused testified that he had called his lawyer a couple of days before the visit from police. He had seen what was in the newspaper and he knew that he was in the building that night.

[20] The accused testified that, once at the police station, and before going into the interview room, his wife asked Paterson why they were there, to which he responded “he knows what this is about; he’s not dumb”. Paterson denied saying this.

[21] Similarly, the accused testified that after he left the interview room, and the recorder was off, another officer said to him that he “was a fucking liar and that they would make sure that he went down for murder”.

[22] The accused stated in his affidavit:

I felt as though I had no choice but to speak to police and answer their questions. I felt like I was a target/suspect.

I felt forced to attend the police station and intimidated. I felt as though I wasn’t going to go home that night if I didn’t answer their questions.

ANALYSIS

Section 9 of the Charter

Constitutional detention: general principles

[23] It is well accepted that not every encounter between police and members of the public, even for investigative purposes, amounts to a detention within the meaning of the Charter: see R. v. Suberu, 2009 SCC 33, [2008] 2 S.C.R. 460, at para. 3. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44, the Supreme Court of Canada set out the following summary of the framework for determining whether there has been a detention within the meaning of ss. 9 and 10 of the Charter:

In summary, we conclude as follows:

1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[24] The question in this case is whether the police conduct would have caused a reasonable person to feel compelled to attend at the police station and answer questions. As held in Grant, “this must be determined objectively, having regard to all the circumstances of the particular situation, including the conduct of the police”. The court went on to note that: “the focus must be on the state conduct in the context of the surrounding legal and factual situation and how that conduct would be perceived by a reasonable person in the situation as it develops”: Grant, at para. 31.

Application to this case: Was Bercian detained?

[25] I have considered the testimony of the accused. I do not accept certain aspects of his testimony. I am skeptical about whether police called him “a fucking liar” at the end of the interview. I am skeptical about whether Paterson made the alleged comment to Bercian’s wife. I sensed that Bercian was inclined to embellish his testimony when he perceived it was in his interests to do so.

[26] Similarly, I do not accept Bercian’s evidence that the police told him nothing about the investigation. Both officers testified that Bercian made a statement while they were at his home. He commented that his wife knew someone related to another suspect. Indeed, his wife did know this person. It is unlikely that the officers made up this statement which the accused acknowledged to be true. I find that the accused did say this, and must therefore have been told something about the case that was of interest to police. The accused did not know everything – the police withheld the fact that the victim had died. But the accused was aware, in general terms, that the police wanted to speak with him about the assault that gave rise to the charges in this case.

[27] While I have rejected some aspects of the accused’s testimony, this does not end the inquiry. The testimony that I have rejected is largely beside the constitutional point. The accused’s testimony was but one source of evidence on the voir dire. Even if I rejected the accused’s evidence in its entirety, I would still have to consider whether the police testimony and the videotaped interview make out a detention for constitutional purposes.

The encounter at Bercian’s home

[28] I will begin by examining the visit by Harmon and Pope at the accused’s residence. There is no evidence to clearly identify the language used by the officers during their encounter with the accused. Neither officer had any notes or recollection about the briefing given to them by the Major Case Unit. Neither officer had any notes or recollection about what they said to Mr. Bercian about his attendance at the station.

[29] The officers offered evidence about what they believed they said, but there is reason to doubt the reliability of their memories. For example, both officers testified that they told Bercian that police wanted to speak about a homicide investigation. However, on the day of the interview, news of the victim’s death was not yet public. Officer Paterson only learned of the death that afternoon, and he deliberately held back that information until mid-way through his questioning of the accused. It is therefore doubtful that either Harmon or Pope referred to a homicide. Even if they knew the victim was dead, they would likely have been instructed not to disclose this to the accused. On this point, I find that their memories are not accurate.

[30] This causes me to believe that other aspects of their evidence might not be accurate. The officers themselves acknowledged that they could not be precise about what took place. They have no notes of the words they used when coaxing Bercian to the station. They have no memory given the passage of time. They testified that they asked Bercian to come to the station. Whether it was framed as a request or a demand is unclear. In the final analysis, the precise words may not matter. Whatever language was used, the officers conveyed to Bercian that he was to come downtown and that they were not going to take no for an answer.

[31] Officer Paterson confirmed that he needed Bercian at the station and would not be questioning him at his home. It was said that Bercian had to come to the station so that police could record the interview. However, in cross examination, Paterson acknowledged that there are mobile recording units that can be used to record in other locations. I find that the police wanted Bercian at the station, not just for recording purposes, but so that they could control the environment and stage the gradual presentation of information as part of the questioning strategy.

[32] I further find that the officers were determined to transport Bercian to the station in a police vehicle, rather than allowing him to take his own car. Once again there is no evidence of the language used to convey this. The officers testified that they offered Bercian a lift to make it easier for him to come to the station. I expect that police also wanted to maintain control over Bercian’s movements. Why else would the police remain outside in their vehicle for close to an hour while Bercian arranged for child care? If Bercian was free to come in his own vehicle, why didn’t the officers leave and invite him to do so when he was ready? Why did officers stay parked outside his house for close to an hour, watching his residence, if they were not intent on transporting him in a police car?

[33] Officer Harmon testified that they wanted to be available for Bercian, and that other tasks could lead to unexpected delay. That may well be, but I perceive that the officers were also concerned not to let Bercian slip through their fingers. When asked what they would have done if he was seen leaving the residence, both officers testified that they would have done nothing; they would have alerted detectives in the major crimes unit and gone on their way. Be that as it may, the inescapable inference is that, had Bercian had left his residence, homicide investigators would have renewed their efforts to get him to the police station.

[34] In short, the accused was given little choice but to attend at the police station. Once there, he was effectively compelled to remain, given the nature of the questioning and the disregard of his requests to leave. I will turn to that now.

The interview

[35] If I am wrong, and Bercian was not detained while speaking to officers in his home, I find that he was most certainly detained after entering the interview room with Officer Paterson. This is a function of several factors:

1. Paterson prepared questioning strategies in advance;

2. Paterson did not leave a card with a phone number for Mr. Bercian to call because he did not want to give Bercian a “heads up”. I take this to mean that he did not want to give Bercian an opportunity to concoct exculpatory details. If Bercian was genuinely just a witness or person with relevant information, there would be no reason not to give him notice that police wished to speak with him;

3. Bercian was turned directly over to Officer Paterson, placed into an interview room, and questioned for close to an hour;

4. The officer asked direct and pointed questions aimed at placing Bercian at the crime scene;

5. The officer used staging and other manipulative strategies designed to elicit incriminating utterances;

6. While the officer told Mr. Bercian that he was free to leave, Mr. Bercian tried to leave on four occasions, and was effectively prevented from doing so.

The Nature of the Questioning

[36] The questioning by Officer Paterson had all of the hallmarks of a suspect interview. Paterson was clearly trying to elicit incriminating evidence from this accused.

[37] The officer began by telling Bercian that he was not under arrest, and that he was free to leave at any time. This encounter included the following:

MP Okay, So uh, you’re not under arrest for anything. EB Yeah. Yeah. MP You’re free to leave at any time. EB Mmhmm. MP If you choose to. EB Okay. MP You can end the interview at any time. Okay. EB (Nodding) MP You’re not obligated to be here for anything. EB Yeah. MP And right now, uh, just want you to know that uh, basically anything you say can be … EB Mmhmm. MP …used for Court purposes. EB Yeah. MP If at some point during my conversation uhmm, I feel that we moved past the fact that uh… EB Mmhmm. MP …you should be Cautioned and maybe you should actually be arrested or something…. EB Uh huh. MP …I’ll advise you of that …. EB (Nods) MP …I’ll give you the opportunity to call a lawyer…like anything like that… EB Yeah. MP …once we get – if, if we got to that point. EB Mhmm. MP Uh, but right now you’re free to go at any time and you’re not obligated to say anything … EB Yeah. MP …and anything you say can be used in Court. EB Yeah. I understand. MP You understand that? EB (Nods)

[38] Following some initial conversation, the officer turned to the investigation, and spoke about the fact that the victim had been beaten up very badly. The officer asked some questions about Dustin Schuh but his main focus was to determine whether Mr. Bercian was himself in the apartment when the offence took place. Early on, he posed what he characterized as a “pretty direct” question, asking Bercian whether he was at the building the night of the incident to which Bercian responded no. At the time he asked the question, the officer knew that Bercian had been present that night. He had seen the video footage and was prepared to confront Bercian with it.

[39] He did not confront Bercian with the video footage right away. First, police staged a mock event. Officer Paterson left the room, returning with the news that the victim was dead and the police were investigating a homicide.

MP They’re trying to keep me up to date with everything so. EB Yeah. MP Uh, actually what they just told me uh, is uhmm, that uhmm, uh, the victim…. EB Mmhmm. MP ….he died. EB Oh, are you serious? MP Yeah. EB Oh man, that sucks. Sorry. MP This is a Murder investigation now. EB It’s very serious now. Right.

At p. 22:

MP So they – the stakes just got a lot higher. EB Yeah. MP For anyone involved. EB Ssss…that’s too….

[40] It was then that he confronted Bercian with the fact that he was seen on the building video on the night of the incident:

MP So uhmm, uh, I forget where we were at there. Oh uh, about the building there. EB Yeah. MP You – you’ve never been there. EB No, not to the building, no. MP You sure? EB Yeah. MP Okay. Uh, cause we have video.

[41] The officer then confronted Bercian with other incriminating propositions:

That he left a bottle of whisky on the third floor;

That he was seen on video leaving through the front door, but not entering;

That he was seen on video meeting with a woman in the lobby of the building.

[42] In each instance, Mr. Bercian denied the suggestion, only to then be confronted with a reference to the video evidence.

[43] The officer then spoke of the search warrant executed on the apartment, and the fact that evidence could be obtained from items such as water bottles and glasses. He then asked Mr. Bercian whether there was any reason police would find his DNA in the apartment.

[44] This line of questioning consisted of pointed and direct inquiries, designed to either catch Bercian in an incriminating utterance or catch him in a demonstrable lie. There is nothing wrong with these questioning techniques per se. Courts have found that when a person has been detained and given their right to counsel, the police are at liberty to use certain tricks and other manipulative interviewing techniques. In this case, however, those techniques ran afoul of the Charter for two reasons.

[45] First, Bercian was denied his rights under s. 10(b) of the Charter. Police failed to comply with both the informational and implementational obligations imposed by s. 10(b). This is because the police labelled the encounter a non-detention. However, the pointed nature of the questioning was one of the factors that created an atmosphere of detention. The more accusatory the interrogation, the more likely a citizen might feel obliged to respond. The more accusatory the interrogation, the more important it is that the citizen be afforded his or her rights. These were not random or spontaneous questions. They were such that a reasonable person would have perceived that he was a suspect, despite the police insisting otherwise.

[46] Secondly, one of the manipulation strategies had the effect of misleading Bercian about the extent of his jeopardy. Paterson withheld the fact that the victim had died until midway through the interview. He did not tell Bercian this information until after Bercian had already incriminated himself, by falsely stating that he was not in the building that day. Certain tricks are permissible in police questioning. However, misleading a person about the extent of their jeopardy is not. It is critical that a person understand what is at stake when they decide to speak to police. Paterson wanted to see how Bercian would react and therefore kept this information from him. Even if the right to counsel had been provided, the failure to tell Bercian that the victim died would have violated his rights under s. 10(a) of the Charter.

[47] As long ago as 1989, in R. v. Black, [1989] 2 S.C.R. 138, the Supreme Court of Canada emphasized the importance of ensuring that a suspect understands the basis for his or her detention. An individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy. Ms. Black was told that she was under arrest for an attempted murder and spoke to counsel. When the victim died a few hours later, her rights under s. 10(b) were revived, given the change in the nature of her jeopardy.

[48] Similarly, in R. v. Borden, [1994] 3 S.C.R. 145, at p. 166, the court made clear that the decision to cooperate with the police, to speak to police, or to consent to a police search must be one that is informed. The person must understand what they are giving up when they forgo the right to silence. They must understand the full extent of their jeopardy.

As this Court has previously stated, the rights in s. 10(a) and 10(b) of the Charter are linked. One of the primary purposes of requiring the police to inform a person of the reasons for his or her detention is so that person may make an informed choice whether to exercise the right to counsel, and if so, to obtain sound advice based on an understanding of the extent of his or her jeopardy: R. v. Black, [1989] 2 S.C.R. 138, at pp. 152-53; and R. v. Smith, [1991] 1 S.C.R. 714, at p. 728.

[49] This point was re-affirmed in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, in which it was held that a change in jeopardy required a new opportunity to exercise the right to counsel:

[51] The detainee is advised upon detention of the reasons for the detention: s. 10(a). The s. 10(b) advice and opportunity to consult counsel follows this. The advice given will be tailored to the situation as the detainee and his lawyer then understand it. If the investigation takes a new and more serious turn as events unfold, that advice may no longer be adequate to the actual situation, or jeopardy, the detainee faces. In order to fulfill the purpose of s. 10(b), the detainee must be given a further opportunity to consult with counsel and obtain advice on the new situation.

[50] In this case, Bercian was denied the right to know why he was detained at the outset. He was denied the right to seek any legal advice, let alone advice based on the circumstances known to police at that time.

Bercian was not free to leave

[51] Paterson told Bercian that he was free to leave the interview at any time. At the end of the interview, he reiterated that Bercian had been free to leave at any time. However, Bercian did try to leave, and was effectively prevented from doing so. This is illustrated by the following exchanges:

At p. 20

MP Hey Erick. EB Uh yeah. (Yawns) MP Sorry man. Just something came up out here. I just got to deal with it. Are you okay in here for a minute? EB Uh….we can finish up quick cause I do wanna be home to my children so. MP Yeah. Just give me two minutes. Okay. There’s a rest room right there if you need it. EB Okay. This will be …. MP Yeah. EB I’ll wait. I’ll wait. I’m okay. MP Okay. Thanks man. EB Yeah.

At p. 45:

MP And I appreciate you coming down. I told you that before. EB Yeah. I know. Yeah. I know. MP I appreciate it. EB And I have my kids waiting at home. That’s – I need to get back there now so. MP Yeah. Someone’s watching them for you? EB My mom but she can’t handle them uh so… MP Okay. Okay. EB I even told her. And that’s why we’re gonna have somebody come over there and talk with me there. MP Yeah. But we can’t…. EB I know the video cause that would be …. MP …move the video cameras there and everything so…. EB Yeah. I know. MP …uhmm, if, if we could arrange uh, would you be willing to come back another time if….? EB Maybe another time. Yeah. MP ….if it’s necessary? EB Yeah. Yeah. Sure. MP Okay. EB But I honestly don’t leave home too much other than …. MP Okay. EB …whatever I can be of help, it’s whatever I can you know. MP Okay. Well we’ll, we’ll just cover…. EB I’ll do uh …. MP … a couple more things. EB I’ll give you my number and you can…. MP Okay. EB …give me a call. MP No. I appreciate that. EB Yeah, but actually I do have to get going right now so. MP Yeah. EB Yeah. MP Can I uh – can I write your number down? EB Yeah. Yeah. MP Okay. What’s the number I can reach you at? EB It’s uh 2-2-6…. MP Yeah. EB …2-4-6….7-7-0-7.

At p. 47:

MP Okay. EB Yeah. MP Uhmm, I’m just gonna go – make sure we covered everything here. Okay. Just – oh, just give me one second here.

DETECTIVE MIKE PATERSON STARTS TO LEAVE INTERVIEW ROOM [9:09:06]

[Pause][9:09:06]

EB I really gotta get going so…. MP Okay. Alright. Just give me one second. I gotta see what they’re knocking about. EB Alright. MP I’ll leave the door open. You can stand right here. EB Yeah. That’s fine. MP I’m not going anywhere. EB No. I know. I know. MP Okay.

At p. 47:

I’m in a rush. I know. I gotta leave…. MP No. Leave that open. I got one more question. EB You told me 10 minutes. MP I know. EB You know so. MP One more question. EB I told the kids … MP Do you mind? EB Sit down? MP Yeah. I was just talking to the officer that actually that uh, that went through the video…. EB Uh. MP … that gave me all these pictures here. EB Yeah. MP And uh, he – he actually – he said that uhmm, I remembered accurately. You actually – you talked with a girl on – in the lobby area between the doors. EB I talked…? MP And… EB Probably held the door open for somebody. I don’t remember talking to anybody in the lobby. MP And he says that you handed her something or she handed you something.

At p. 56:

EB …you can call me. I really need to get home to my children you know. It’s like…. MP Yeah. Well you’re free to go any time you wanna go. EB But this is not really….you know…. MP I appreciate you talking to me. EB Yeah. Cause they told me 10 minutes you know so …. MP That’s fair. EB Like I, I don’t like to leave them with her mom. She’s got tendonitis and …. MP Oh yeah. EB …she can’t deal with it. MP She’s, she’s – she’ll probably already called my phone and she has my phone you know and…. MP Do you have uh, Den – do you have D Block’s number in your phone? EB Uh, actually the one that I said that doesn’t – like is no good; doesn’t go nowhere. MP (Nodding) But you have it? EB Yeah. It’s in there. Yeah. MP Okay. Alright. Cause we could – you know through records we could try and maybe you know track that number a little bit. EB Yeah. MP So … EB Yeah. MP Okay. EB Yeah. MP You know we can do that. Right? We can…. EB Yeah. MP We can do Warrants that’ll help track you know …. EB Yeah. MP …where telephones might be and, and …. EB Yeah. MP …things like that so. EB Yeah. MP Okay. EB Yeah. MP Okay. Do you have any questions of me? EB Uh, no. I’m good. MP Are you sure? EB Yeah. MP Okay. EB If I can be more helpful you know I’ll be more helpful. MP Yeah. No. I appreciate you coming down. EB That’s uh…. MP I realize it’s late at night and we kinda got you out. EB Yeah. MP Is there a time like during the day that’s better uh…? EB Oh, afternoons is usually good. MP Okay. EB Okay. So. MP Okay. Alright. I appreciate that. You don’t have any questions of me? EB Uh, no. Not at the moment. No. MP Okay. Alright. EB Do you have a card or anything? MP Yeah. I’ll give you my…. EB Okay. MP …card on the way out the door there. EB Alright. MP I appreciate it. EB Yeah. But I gotta say you know like uh, uh, the only person I seen was that girl. They bought bottles and, even that…. MP Remember, remember what she looked like? EB …even – like I said, I even, I even called my lawyer and I spoke to my lawyer you know and I said: Listen uh, they wanna question me about this and that and he told me, no, don’t go and say nothing. But I say – cause I, I just sold them some bottles. I don’t wanna be involved. But I, I told him I will go to….. MP Yeah. You did…. EB ……to, to speak about the – all because of her… MP No. I appreciate it. And like I said you were free to go at any time. EB Yeah. Okay. MP You understand that. EB Yes sir. I understand. MP Okay. Man. EB Okay. Thanks a lot. MP Thank you very much.

[52] Mr. Costa for the Crown argues that Mr. Bercian was free to leave at any time. He was told on many occasions that he was free to leave. The door was not locked. He was not compelled to stay but rather persuaded to stay by the officer. Mr. Costa argues that, in these circumstances, his decision to stay and speak was entirely voluntary.

[53] I cannot agree. It is true that the officer did not physically prevent Mr. Bercian from leaving. But the issue here is not physical detention, but psychological detention. In Grant, at para. 39, the court noted:

The notion of psychological detention recognizes the reality that police tactics, even in the absence of exercising actual physical restraint, may be coercive enough to effectively remove the individual’s choice to walk away from the police. This creates the risk that the person may reasonably feel compelled to incriminate himself or herself.

[54] Here, the officer used manipulation rather than physical restraints – he subtly and not so subtly ignored Bercian’s requests to leave by continuing to ask direct and incriminating questions. The officer did not verbally tell Bercian that he could not leave, but the officer’s conduct had much the same effect. This is the very type of conduct that is contemplated by psychological detention. A reasonable person would have understood that he was not at liberty to leave until the officer was done. The door may have been unlocked, but the detention arises from the psychological barrier that prevented Bercian from walking through it.

Conclusion on Detention

[55] For the above reasons, I find that Bercian was detained when he spoke to police on October 27, 2016. Labels are not important. Calling a detention a non-detention does not change the character of the encounter. Calling a suspect a person of interest does not suspend police obligations. As was observed by Trotter J. (as he then was) in R. v. Jama, 2017 ONSC 470 at para 45 “like suspects, persons of interest are capable of being psychologically detained, depending upon the specific circumstances of the police encounter”. Police cannot side-step their constitutional duties by relying on misleading labels or false assurances.

[56] Similarly, telling a suspect that he is free to leave does not necessarily make it so. Semantics aside, the analysis must hinge on what the police did and whether it created an atmosphere of compulsion. The law requires a functional and holistic analysis of the dynamic at play between the police officer and citizen. A detention by another name is still a detention.

[57] In this case, the police offered some assurances to Bercian. He was told that he was not a suspect. He was told that he was free to leave. Officer Paterson testified that he was merely a person of interest at the time of the interview. Against that backdrop, police maintained significant control over his movements. He was taken to the police station in a police vehicle. He was interviewed for over an hour, asked a series of pointed questions, and not permitted to leave when he asked to do so. I find that Bercian was detained within the meaning of ss. 9 and 10 of the Charter.

Consequential Findings

[58] The Crown acknowledges that, if Bercian was detained, his rights under ss. 10(a) and 10(b) of the Charter were violated, and the statement must be excluded under s. 24(2) of the Charter. I agree with these concessions. Bercian was not told the reason for his detention. Most significantly, he did not know that the victim had died and therefore did not appreciate the extent of his jeopardy when he spoke to the police. He did not know that he was being questioned in relation to a homicide, rather than an assault. He was not given his right to counsel. The evidence indicated that Bercian spoke to a lawyer sometime before the police arrived at his door. However, that does not cure the omission. When he spoke to his lawyer, he had yet to encounter the police. When he spoke to his lawyer, he did not know that the crime under investigation was murder. The violations are clear, evident and serious. Bercian was lulled into incriminating himself without knowing what was at stake, and without the benefit of legal advice. Had he been told these things, he may not have spoken with the police. But that is the point. He had the right to know that he had the right to remain silent, and the right to know that if he gave up that right, he could potentially face a charge of murder.

[59] Because of the Crown concessions, I do not propose to conduct a detailed analysis under s. 24(2) of the Charter. Suffice to say that statements made to police following a s. 10(b) violation are usually excluded due to the serious nature of the state conduct, the impact on the Charter rights of the accused, and the fact that statements, unlike real pre-existing evidence, may or may not be reliable. There is a strong societal interest in the prosecution of the crime in this case, the most serious known to our law. However, there is an equally compelling societal interest in ensuring that those suspected of serious crimes be afforded their constitutional rights. As it was put in para. 84 of Grant: “… while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high”: see also R. v. Omar, 2018 ONCA 975.

[60] The exclusion of the statement does not terminate the prosecution against Bercian. It does, however, ensure that the trial is not tainted by self-incriminating utterances obtained in violation of ss. 10(a) and 10(b) of the Charter. For these reasons, I exclude Erick Bercian’s statement of October 27, 2016 from the trial.

Original signed by “ Pomerance J. ” Renee M. Pomerance Madam Justice Released orally: January 9, 2019