COURT FILE NO.: CR-21-RG19925-A DATE: 2023/05/01

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING – and – ZEKEIM OGILVIE, WARSAME ABDULLAHI, and AKOL AKOL

Counsel: Jason Neubauer and Emilie Farrell, for the Crown Biagio Del Greco, for Mr. Ogilvie Paolo Giancaterino, for Mr. Akol

HEARD: April 21 and 24, 2023

RULING Berhe Application Corthorn J.

Introduction

[1] Zekeim Ogilvie is charged with 13 offences arising from a shooting that occurred on June 29, 2020 (“the Shooting”). The offences with which Mr. Ogilvie is charged include two counts of aggravated assault (s. 268(2) of the Criminal Code); two counts of discharge of a firearm with intent to wound (s. 244(2)); assault with a weapon (s. 267(a)); two counts of reckless discharge of a firearm (s. 244.2(3)); and a series of firearms-related charges.

[2] Akol Akol is charged with the same thirteen offences and with two counts of enabling escape (s. 463(b)). All of those charges relate to the Shooting. The charges against Warsame Abdullahi did not proceed to trial.

[3] The trial of Mr. Ogilvie and Mr. Akol commenced on April 17, 2023 and is scheduled for four weeks. On the fifth day of trial, April 21, 2023, Det. Oliver Walrond testified regarding his involvement in the investigation of the Shooting. The court embarked on a blended voir dire, to determine whether Det. Walrond’s recognition evidence, identifying Mr. Ogilvie on a video recording from the date of the Shooting, is admissible.

[4] Based on the test established in R. v. Berhe, 2012 ONCA 716, 113 O.R. (3d) 137 (C.A), the Crown requests Det. Walrond’s recognition evidence be admitted. Mr. Ogilvie asks that the application be dismissed, with Det. Walrond’s recognition evidence excluded from the evidence at trial.

Det. Walrond’s Evidence

[5] As of the summer of 2020, Det. Walrond had been a member of the Ottawa Police Service (“OPS”) for 19 years. He was one of three detectives who comprised the OPS Guns and Gangs Unit.

[6] On August 10, 2020, as part of the investigation of the Shooting, Det. Walrond views a video recording from a courtyard area at the Ritchie Street housing complex; the recording is from June 29, 2020 (“the Video”). [^1] On the Video, a man is seen both walking across a courtyard and in the area of one of the units of the housing complex. The man is wearing grey pants and a light-coloured hoodie. The evidence at trial is that the unit towards and away from which the man in the Video is seen walking is the unit in which Mr. Akol resided at the time (“the Akol Unit”).

[7] Det. Walrond testified that he recognizes the man in the Video as Zekeim Ogilvie. That recognition stems from the detective’s prior encounter with Mr. Ogilvie in late June or early July 2019.

The 2019 Police Interview

[8] In the summer of 2019, Det. Walrond is involved in the investigation of a shooting of two males. That shooting is alleged to have occurred on the south side of the Akol Unit. Mr. Ogilvie is believed to be in the company of the two men when they were shot and, therefore, a witness to the 2019 shooting.

[9] Mr. Ogilvie attends at the OPS Greenbank Road station for an interview. Before the interview begins, a fellow officer tells Det. Walrond that Mr. Ogilvie is at the station to be interviewed. Det. Walrond conducts the interview, which is recorded.

[10] During Det. Walrond’s testimony, portions of the video of the 2019 interview were played (without audio). Mr. Ogilvie is seen entering the interview room with Det. Walrond; remaining seated at a small table throughout the interview; and exiting the interview room with Det. Walrond. Mr. Ogilvie is not wearing anything which conceals his features. The interview occurred pre-pandemic; Mr. Ogilvie is not wearing a mask.

[11] When Det. Walrond and Mr. Ogilvie are both in the interview room, they are seated at a small table, facing one another. No one else enters the room during the interview. Det. Walrond leaves and re-enters the room several times. The recording, which includes footage of the interview room when empty before the two men enter, is 53 minutes long.

[12] Det. Walrond’s evidence regarding the 2019 interview of Mr. Ogilvie is as follows:

• The interview was significant to the investigation of the 2019 shooting;
• The interview was memorable because it is rare that individuals are prepared to be interviewed about a shooting; and
• The interview did not result in “much fruit” about the 2019 shooting.

[13] Det. Walrond testified that, during the interview, he had an opportunity to observe Mr. Ogilvie’s features. Det. Walrond’s evidence is that Mr. Ogilvie did not leave a long-lasting impression.

[14] Between the summer of 2019 and August 2020, Det. Walrond did not have any physical interaction with Mr. Ogilvie. The detective testified that he has, however, seen Mr. Ogilvie on a screen “many times” in a year and a half to two years. Det. Walrond did not provide either a start date or an end date to that span of time.

The Investigation of the Shooting

[15] Moving forward to the summer of 2020, and the investigation of the Shooting, both Det. Walrond and Det. Nip are investigating the Shooting. August 10, 2020 is Det. Walrond’s first day back from annual leave. Det. Nip is on leave on that date.

[16] The two detectives do not speak about the Video before Det. Walrond views it. Det. Walrond understands that Det. Nip obtained the Video because he believes there might be something in the Ritchie Street area of importance to the investigation of the Shooting.

[17] As of August 10, 2020, Det. Walrond is aware from other video recordings obtained in the investigation of the Shooting that there were two potential shooters, neither of whom had been identified. One of the things Det. Walrond has in mind when watching the Video is the possible identification of the shooters.

[18] Det. Walrond first watches a video recording from a different location at the Ritchie Street housing complex – the community centre parking lot. In this first video, Det. Walrond sees a tan-coloured Mazda 6 vehicle enter the parking lot. That vehicle is what first catches the detective’s eye. Det. Walrond is able to see the licence plate for the vehicle and, ultimately, to ascertain the name of the registered owner of the vehicle. Det. Walrond does not recognize Mr. Ogilvie in this first video.

[19] Det. Walrond spends a significant portion of the afternoon of August 10, 2020 looking at video recordings from the Ritchie Street area. He is unable to say specifically how much time he spends that afternoon watching those video recordings.

[20] After watching the video recording from the community centre parking lot, Det. Walrond watches the Video. Both in examination in chief and when cross-examined, Det. Walrond testified that, when he first views the Video, he is 100 per cent certain of his identification of Mr. Ogilvie as one of the individuals seen in it. The detective testified that he remains 100 per cent certain of that identification.

[21] Also in examination in chief, Det. Walrond testified that the individual he sees in the Video “looks the exact same” [^2] as Mr. Ogilvie looks in the video of the 2019 interview. The detective provided the following description of Mr. Ogilvie:

• A Black male between the ages of 20 and 25 years old;
• He has an overbite;
• He has a high forehead or a receding hairline;
• His hair is tight – in cornrows, which can be seen at the base of Mr. Ogilvie’s neck;
• He has a narrow nose;
• On a scale of zero (no colour) to ten (deep brown), Mr. Ogilvie’s complexion is a six;
• The individual in the Video is the same height (5’10” to 6’) and build/weight (150 to 180 pounds) as was Mr. Ogilvie when he was interviewed in 2019; and
• The way the individual in the Video walks and moves is similar to the way Mr. Ogilvie walked and moved when he attended for the 2019 interview.

[22] In addition, Det. Walrond recognizes the Akol Unit, to and from which the individual in the Video is seen walking, as the residence near which the 2019 shooting occurred.

[23] Det. Walrond was cross-examined as to the lack of any mention in his Duty Book notes of his recognition, on August 10, 2020, of Mr. Ogilvie as the individual in the Video. In cross-examination, Det. Walrond acknowledged that the date on which he first makes a note or entry, in any document, as to his recognition of Mr. Ogilvie in the Video is in an Information to Obtain (“ITO”), which he begins to prepare on August 16, 2020. The ITO is prepared in support of a request for a search warrant.

[24] The next document in which Det. Walrond includes an entry about his recognition of Mr. Ogilvie as the individual in the Video is an Investigation Action Report dated August 21, 2020 (“the IA”). In the IA, Det. Walrond documents his interview of the owner of the Mazda 6. As the detective is doing so, he is reminded or prompted to document his recognition of Mr. Ogilvie.

[25] In the IA, Det. Walrond refers to Mr. Ogilvie as a witness to the 2019 shooting in the area of the Akol Unit. The detective also refers to Mr. Ogilvie attending the police station for “a voluntary audio video statement” [^3], regarding the 2019 shooting, as the basis for his recognition of Mr. Ogilvie. In the IA, Det. Walrond describes recognizing Mr. Ogilvie as the individual who, at and after 17:13 [^4] in the Video: (a) walks across the courtyard towards the Akol Unit and appears to enter the unit; and (b) later walks from the side of and across the front of the Akol Unit.

[26] In the IA, Det. Walrond describes that a black box on the screen, for the protection of the privacy of residents, partially obscures his view of two individuals seen leaving the Akol Unit at 17:26:

This block was in such a position that you cannot see the two individuals who left 8-107 Ritchie Street.

However, based on the timing, the skin colour of his hands, his size, and him wearing a grey hoodie, dark grey jeans, and black running shoes, I am very confident that this was Ogilvie and another unknown male. [^5]

[27] The detective includes the latter description to address the fact that for the 17:26 portion of the Video, he does not see Mr. Ogilvie’s face on screen. The latter description also explains why Det. Walrond recognizes the person leaving the Akol Unit, at 17:26, as the same person who entered the unit at 17:13.

[28] In cross-examination, Det. Walrond acknowledged that, regarding the individual he recognizes as Mr. Ogilvie, he does not make any mention in the IA of an overbite, the size or shape of the forehead, the hairstyle, or the degree of hair recession. In re-examination, Det. Walrond explained why, in the IA, he does nothing more than note the ethnicity of the individual he recognizes as Mr. Ogilvie: “it – that’s not the way people interact […] I believe the reason why I didn’t write the description down is because I know it’s Zekeim Ogilvie[.] I’m not gonna write a description of Mr. Ogilvie down[;] that’s not how human beings write. It’s not normal.” [^6]

[29] Exhibit 7 is comprised of a series of video clips, including Clip 3 (i.e., the Video). In the Video, which runs from approximately 17:13 to 17:16, a lone adult male is seen in the area of the Akol Unit. Exhibit 7 does not include the recording viewed by Det. Walrond of 17:26 and forward, described in the IA as including two males exiting the Akol Unit. It is not material to this voir dire that the recording of 17:26 and forward is not available to the court. The court is not, at this stage, assessing the credibility and reliability of Det. Walrond’s recognition evidence – whether based on the Video or any other video viewed by Det. Walrond.

The Issue

[30] On this voir dire, the court exercises its gate-keeping function and determines whether Det. Walrond’s recognition evidence meets the criteria for threshold admissibility. The reliability of and/or weight to be given to the recognition evidence, if admitted, is a different issue for a later stage in the proceeding.

[31] At the voir dire stage, the court determines whether the potential recognition witness “is sufficiently familiar with the person whose identity is in question to be in a better position than the trier of fact to assist in making the identification”: see Berhe, at para. 20. Only if those criteria are met is the recognition evidence admissible.

The Law

[32] The test applied when determining the admissibility of recognition evidence has two branches: (a) the prior acquaintance branch; and (b) the better position branch. At para. 21 of Berhe, the Court of Appeal explains the two branches:

The “prior acquaintance” branch of the Leaney/Brown test enables the trial judge, on a voir dire, to sort out whether the potential witness is sufficiently familiar with the person sought to be identified to have “some basis” for the opinion – or, “an articulated basis”, as some have said [^7] – and the “better position” branch ensures that the evidence will only be admitted if it is helpful to the trier of fact because the potential witness has some advantage that can shed light on the evidence in question.

[33] At the threshold admissibility stage, it is not necessary for the recognition evidence witness to “point to some unique identifiable feature or idiosyncrasy of the person to be identified”: Berhe, at para. 22.

[34] Eight years after the decision in Berhe, the Court of Appeal once again considered the test for threshold admissibility of recognition evidence. In R. v. Hudson, 2020 ONCA 507, 391 C.C.C. (3d) 208, at para. 31, the Court summarizes the approach to be taken by the trial judge:

• The thrust of the inquiry on the voir dire is a determination of the recognition witness’ level of familiarity with the accused;
• To assess the level of familiarity, the focus for the trial judge is on “the nature of the relationship between the potential witness and the accused, including the frequency and the intensity of the past contact”;
• The trial judge should not base their determination of threshold admissibility on the potential witness’ anticipated testimony; and
• The trial judge “should be wary of the allure of potential witnesses who, despite having only a general level of familiarity with the accused, purport to be able to offer descriptions capable of identifying them”.

[35] Also, at para. 31 of Hudson, the Court sets out the fundamental question for the trial judge: “[Whether] the potential witness is sufficiently familiar with the accused such that the potential witness may be able to provide valuable identification information about the accused that a trier of fact, with access to only the accused, the video, and photographic evidence during trial, will not be able to or [will be] unlikely to ascertain for him or herself.”

[36] In concluding para. 31 of Hudson, the Court cautions the trial judge about recognition evidence, stating: “In other words, a trial judge should generally only permit a potential recognition witness to testify where the judge is satisfied, on a balance of probabilities, that the witness’ relationship with the accused affords him or her a level of familiarity that will enable the witness to provide valuable and otherwise unavailable identifying information.”

[37] I turn next to the respective positions of the Crown and Mr. Ogilvie.

The Positions of the Parties

The Crown

[38] The Crown submits it has, on a balance of probabilities, established that Det. Walrond is in a better position than the court to provide valuable and otherwise unavailable identifying information about Mr. Ogilvie. The Crown submits that, even if Det. Walrond is only in a slightly or marginally better position than the court to provide identifying information, then, his recognition evidence is admissible.

[39] The Crown asks the court to consider the intensity and meaning of Det. Walrond’s 2019 interaction with Mr. Ogilvie. The Crown describes that interaction as a 53-minute police interview, which was rare by its very nature and which allowed Det. Walrond to be face-to-face with Mr. Ogilvie across a small table.

[40] The Crown contrasts that interaction with the vantage point and opportunity of the trial judge to observe Mr. Ogilvie in the courtroom. The Crown highlights the 15-or-more feet which separate Mr. Ogilvie, as he sits in the box for the accused, from the dais. The Crown lists the multiple tasks in which the trial judge is engaged at any time during trial, including listening to and/or watching a witness, hearing submissions from counsel, note-taking, and viewing exhibits shown on a large screen.

[41] The Crown also contrasts Det. Walrond’s opportunity to observe Mr. Ogilvie move freely, and with his normal stride, as he entered and exited the police interview room with the trial judge’s opportunity to observe Mr. Ogilvie enter and exit the courtroom in leg manacles.

[42] The Crown asks the court to consider Det. Walrond’s evidence as to Mr. Ogilvie’s hairstyle in both 2019 and 2020 (tight cornrows) versus Mr. Ogilvie’s hairstyle as of April 2023 (described by the Crown as a “short Afro”). The Crown submits that Det. Walrond is in a position to provide valuable identifying information about Mr. Ogilvie’s hairstyle that is otherwise unavailable to the court.

Mr. Ogilvie

[43] Mr. Ogilvie emphasizes that, for Det. Walrond’s recognition evidence to be admissible, it must be capable of assisting the trier of fact in determining whether the individual seen on the Video is Mr. Ogilvie.

[44] First, Mr. Ogilvie submits the evidence does not support a finding that the 2019 interview afforded Det. Walrond a sufficient level of familiarity with Mr. Ogilvie’s gait or movement to enable the detective to provide valuable and otherwise unavailable identifying information.

[45] Second, Mr. Ogilvie submits Det. Walrond’s evidence about the 2019 interview does not support a conclusion that the interview resulted in the detective becoming sufficiently familiar with Mr. Ogilvie’s facial features, complexion, hairline, and hairstyle so as to have “some basis” or an “articulated basis” (the terms used in Berhe, at para. 21) for an opinion that the individual seen in the Video is Mr. Ogilvie.

[46] Mr. Ogilvie asks the court to consider the detective’s evidence as to what was significant and/or memorable about the 2019 interview – the nature of the encounter and not the individual interviewed. Regarding the former, Det. Walrond testified as to the rarity of a witness to a shooting voluntarily providing a statement to the police. Regarding the latter, Det. Walrond testified that Mr. Ogilvie did not leave a long-lasting impression.

[47] Mr. Ogilvie submits it is not surprising that he did not leave a long-lasting impression on Det. Walrond. The detective’s focus in 2019 was on the investigation of a shooting, which involved two victims. Mr. Ogilvie’s identity was not in question; the detective was provided the name of the person whom he would be interviewing.

[48] Third, Mr. Ogilvie submits evidence of his hairline and hairstyle at the time of the Shooting is available to the court. Exhibit 12 is a portrait-orientation, coloured photograph of Mr. Ogilvie, taken approximately two months after the Shooting. In that photograph, Mr. Ogilvie’s hairline is fully observable and his hair is in cornrows.

[49] Last, Mr. Ogilvie submits the trial judge has a better vantage point than did Det. Walrond, based on the 2019 interview, to determine whether the person in the Video is Mr. Ogilvie. The trial judge’s vantage point is said by Mr. Ogilvie to include:

• The ability to compare the individual in the Video to Mr. Ogilvie, as he sits in the box for the accused, in real time;
• Time spent in the courtroom with Mr. Ogilvie – two full days for a pre-trial application; two trial management conferences; nine trial days to date; and additional trial days for defence evidence, if called, and submissions; and
• Presiding over a trial in which it has been known to the court from the outset that identification of participants in the Shooting is an issue at trial.

[50] Mr. Ogilvie submits the 2019 interview does not put the detective in a better position than the trial judge to determine whether the individual in the Video is Mr. Ogilvie; as a result, the threshold for admissibility of Det. Walrond’s recognition evidence is not met.

Analysis

[51] I approach Det. Walrond’s recognition evidence based on the two components described by both the Crown and Mr. Ogilvie: (a) gait and movement; and (b) facial features, complexion, hairline, and hairstyle.

Gait and Movement

[52] The video recording of the 2019 interview is Exhibit 11. I have reviewed that video several times. Based on Det. Walrond’s evidence, viewing the video in court, and my reviews of the video for the purpose of this ruling, I make the following findings:

• Det. Walrond enters the interview room ahead of Mr. Ogilvie. Approximately four seconds pass between the time when Det. Walrond enters the interview room and when Mr. Ogilvie is seated at the table. Det. Walrond had less than four seconds in which to observe Mr. Ogilvie’s gait and movement as Mr. Ogilvie entered the interview room and sits at the table; and
• When the interview is concluded, Det. Walrond and Mr. Ogilvie leave the interview room together. Mr. Ogilvie is to Det. Walrond’s right and slightly ahead of the detective. In the four seconds that it takes the two men to leave the interview room, Det. Walrond is at times looking at the wall facing him and at the light switch. Det. Walrond turns out the light before he leaves. Det. Walrond had less than four seconds in which to observe Mr. Ogilvie’s gait and movement as the two men exited the interview room.

[53] There is no evidence as to the amount of time Det. Walrond spent with Mr. Ogilvie, at the police station, either before or after the interview. There is no evidence as to the distance which the two men covered together outside the interview room, including at a time when Det. Walrond was in a position to observe Mr. Ogilvie’s gait and movement.

[54] I find that the 2019 interview did not result in Det. Walrond becoming sufficiently familiar with Mr. Ogilvie so as to have some basis for the opinion expressed as to Mr. Ogilvie’s gait and movement.

Facial Features, Complexion, Hairline, and Hairstyle

[55] It is undisputed that the duration of the video recording of the 2019 interview is 53 minutes. Det. Walrond is not in the interview room the entire time. Det. Walrond leaves and returns to the interview room four times. Based on viewing Exhibit 11 in court and my reviews of that exhibit for the purpose of this ruling, I find that Det. Walrond is not seated at the table for a total of approximately three minutes and forty seconds. For four minutes in total, of the 53 minutes shown on the video, Det. Walrond is not seated across the table from Mr. Ogilvie. [^8]

[56] Det. Walrond spent time with Mr. Ogilvie outside the interview room – both before and after the interview. There is, however, no evidence as to the length of time the two men spent together outside the interview room; nor is there any evidence as to how the two men were positioned, relative to one another, during that time.

[57] What is the court to make of the approximately 49 minutes during which Det. Walrond is seated across the table from Mr. Ogilvie for the 2019 interview? At para. 39 of Hudson, the Court of Appeal describes a police interview as a prior interaction that might be “particularly intense or meaningful” – so as to give rise to the requisite level of familiarity for admission of the interviewing officer’s recognition evidence. The Court does not conclude that every police interview will afford the interviewing officer a level of familiarity sufficient to enable the officer to provide valuable and otherwise unavailable identifying information.

[58] In Hudson, the Court upheld the trial judge’s decision to admit the recognition evidence of a detective who had been part of two prior investigations, specifically, of Mr. Hudson. For one of those prior matters, the detective was able to observe Mr. Hudson in court for the most part of a day. As part of one or both of the prior investigations, the detective had studied confirmed photographs of Mr. Hudson, viewed confirmed videos of Mr. Hudson, and interacted with Mr. Hudson personally. Despite the extent of that prior relationship, the Court, at para. 39, describes the trial judge’s admission of the detective’s recognition evidence as “certainly a borderline case”.

[59] Det. Walrond’s prior acquaintance with Mr. Ogilvie is distinguishable from and falls short of the nature and extent of the relationship between Mr. Hudson and the detective whose recognition evidence was admitted.

[60] First, Det. Walrond has not been involved in any prior investigation specifically of Mr. Ogilvie. I contrast zero investigations with the two prior investigations by the recognition witness in Hudson of the individual whose identity was in issue.

[61] Second, despite Det. Walrond’s opportunity to spend 49 minutes face-to-face with Mr. Ogilvie, across a small table, Det. Walrond’s focus at the time was not Mr. Ogilvie; it was the investigation of a double shooting. I contrast those 49 minutes with the observations made by the recognition witness in Hudson throughout the better part of a day in court, with Mr. Hudson the focus of the court proceeding.

[62] Third, there is no evidence that Det. Walrond studied confirmed photographs or viewed confirmed videos of Mr. Ogilvie before identifying him as the individual see in the Video.

[63] Fourth, I consider the significance and meaning ascribed by Det. Walrond to the 2019 interview. What stands out for Det. Walrond is the rarity of a witness to a shooting being willing to provide a statement. Det. Walrond was forthright in his testimony when he stated that the subject of the interview – Mr. Ogilvie – did not leave a lasting impression.

[64] For those reasons, I find that Det. Walrond’s prior acquaintance with Mr. Ogilvie did not afford the detective a level of familiarity sufficient to enable him to provide valuable and otherwise unavailable identifying information about Mr. Ogilvie’s facial features, complexion, hairline, and hairstyle.

[65] In any event, I question whether Det. Walrond is able to assist the court by providing “valuable and otherwise unavailable identifying information” (Hudson, at para. 39) about Mr. Ogilvie’s facial features, complexion, hairline, and hairstyle.

[66] Prior to the commencement of trial, Mr. Ogilvie was in the courtroom for at least two sitting days. For the trial, Mr. Ogilvie has, to date, been in the courtroom for approximately nine sitting days. Throughout that time, he has been seated 15 to 20 feet from the dais. There is some obstruction, from time to time, of the view of Mr. Ogilvie from the dais:

• For example, when Mr. Ogilvie’s counsel is on his feet, counsel at times completely blocks the view of Mr. Ogilvie from the dais; and
• At times, the combination of lighting and the partition surrounding the box for the accused detracts from the clarity of the view, from the dais, of Mr. Ogilvie’s facial features, complexion, hairline and hairstyle.

[67] Those forms of obstruction are not significant and do not detract from the trial judge’s ability, from the dais, to observe Mr. Ogilvie’s facial features, complexion, hairline, and hairstyle. In addition, the portrait-orientation, coloured photograph of Mr. Ogilvie taken in late August 2020 is available to the trial judge.

[68] From the combination of observations made of Mr. Ogilvie while seated in the box for the accused and the opportunity to view Exhibit 12, valuable identifying information is available to the trial judge. Det. Walrond’s recognition evidence does not provide valuable identifying information that is otherwise unavailable.

Disposition

[69] For the reasons set out above, I find that the Crown has not satisfied the Berhe test. The Crown’s application for the admission of Det. Walrond’s recognition evidence is dismissed.

Madam Justice Sylvia Corthorn Released: May 1, 2023

Footnotes

[^1]: Exhibit 7, Clip 3. [^2]: April 21, 2023 transcript of the evidence of Det. Walrond (“Transcript”), at p. 10, l. 12. [^3]: Transcript, p. 43, l. 28-29. [^4]: The time stamp references in the IA are from the video recordings viewed by Det. Walrond. [^5]: Transcript, at p. 44, l. 18-27. [^6]: Transcript, at p. 52, l. 11-12 and 18-22. [^7]: The “Leaney/Brown test” refers to the decisions in R. v. Brown (2006), 215 C.C.C (3d) 300, at para. 39 (Ont. C.A.) and R. v. Leaney, [1989] 2 S.C.R. 393, at p. 413. [^8]: I arrive at an approximation of four minutes by adding the eight seconds to enter and exit the interview room to the three minutes and forty seconds that Det. Walrond was exiting, outside, and re-entering the interview room.