Court File and Parties
COURT FILE NO.: CR-22-10000052 DATE: 20231005 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HIS MAJESTY THE KING – and – KENNETH HILL
Counsel: Mark Reiger, for the Crown Rick Frank, for Mr. Hill
HEARD: January 31 and February 1, 2, 3, 2023
R.F. GOLDSTEIN J.
[1] Mr. Hill brings an application to either stay proceedings or exclude evidence because of a series of Charter breaches. On March 17, 2023, I gave a “bottom line” ruling dismissing the application. I indicated that I would provide full reasons in due course. At that time, I stated:
On December 24, 2020, Mr. Hill allegedly attacked five people in the area of Bathurst Street in Toronto, running from Fleet Street to the south to King Street to the north. These were brief, random attacks by a stranger. One of the attacks was allegedly made with a bottle; another was allegedly with a pen. The first 911 call about the attacks was made at 6:20 am. By 7:05 am the police had identified Mr. Hill as the attacker and arrested him. He was frisked at the scene. No weapons were found. He was filmed by the in-car camera as he was arrested. He was then taken to the police station. He appeared on video in the booking hall. The police slowly took off his many layers of clothing in order to search for weapons. They did not find one. He was wearing sweatpants of some type. The drawstring appeared to be removed. The officer-in-charge authorized a strip search. Prior to the strip search Mr. Hill was taken to the phone booth to speak to counsel. As he was taken into the booth, his pants kept falling down. The officers kept pulling them up. As Mr. Hill went into the phone booth, his pants fell down again but this time the officers did not pull up his pants. The booth was made of glass; hence the officers could see in although they could not hear what Mr. Hill was saying. The video caught him on the phone literally with his pants down. When he hung up the phone, police officers removed him from the booth. He protested that he had to make his phone call. One of the officers responded that they had to do it for him. The police officers then took Mr. Hill to a private room and strip searched him. They did not find a weapon.
Mr. Hill is now charged with one count of assault; three counts of assault with a weapon; one count of aggravated assault; one count of assault causing bodily harm; one count of mischief; and one count of failing to comply with probation.
At trial, the Crown intends to play video taken from an in-car camera that shows Mr. Hill being arrested. At least one witness used the video to identify him. The Crown does not intend to play the booking video, and certainly not the parts of the video where Mr. Hill’s pants fall below his waist. The Crown simply wants to use some still shots to compare the clothing Mr. Hill was wearing with some surveillance video.
Mr. Hill applies to stay proceedings based on a systemic violation of his rights. In the alternative, he seeks to exclude all the evidence emanating from the in-car camera and the booking hall. His counsel, Mr. Frank, argues that the police violated Mr. Hill’s s. 8, s. 10(a), and s. 10(b) rights. He argues that the police did not have reasonable and probable grounds for a strip search; that they violated Mr. Hill’s rights by failing to provide him with any kind of privacy or jumpsuit when his pants kept falling down; that the police failed to inform him of the extent of his jeopardy when they arrested him; and that the police violated his 10(b) rights in two ways – they unilaterally provided him with duty counsel when they could not find the lawyer that he had named; and they simply removed him from the booth after three minutes although Mr. Hill told them that he was trying to call duty counsel.
I find that the police did not violate Mr. Hill’s s. 8 or s. 10(a) rights. I do find, however, that the police violated Mr. Hill’s s. 10(b) rights. The police were not necessarily obliged to put Mr. Hill in touch with the named lawyer, especially as they could not find him, but they were required to follow up with Mr. Hill and determine if he wished to speak to duty counsel instead. As well, the police were not necessarily obliged to let Mr. Hill make another call to counsel, but they were required to follow up and find out if he had at least spoken to counsel and received legal advice. They did not do either of these things. I think it was particularly important for the police to follow up with Mr. Hill when it was plain and obvious that he was struggling with mental health difficulties. I agree with Mr. Frank in that regard.
When I apply the factors under s. 24(2), I find, however, that this breach is at the low end of the spectrum. It does not merit a stay of proceedings. It is hardly the worst violation and is certainly not the clearest of cases. I also find that on balance, it would not bring the administration of justice into disrepute to admit the in-car camera evidence or stills from the booking video. Accordingly, the application is dismissed.
[2] What follows are my complete reasons.
Background
[3] Shortly after 6 am on December 24, 2020, people in downtown Toronto made multiple calls to a 911 dispatcher. The callers indicated that someone was assaulting people on the street. The police dispatched officers to gather information. It appeared that all the assaults were perpetrated within a short period of time and in a limited geographical area, by the same suspect. The police received descriptions of the suspect.
[4] Constables Metzger and Vukovic were assigned to investigate and find the suspect. They drove a marked police cruiser to the area of Bathurst Street and Front Street. They encountered someone fitting the description of the suspect on Portland Street between Adelaide and Richmond Streets – he jumped in front of the cruiser. The officers engaged in a short foot pursuit just before 7:00 am and arrested him. The officers cuffed him to the rear. PC Metzger told him he was under arrest for assault with a weapon. The officers conducted a pat-down search. The did not find a weapon but did find some rocks in his pocket – there had been information about a person throwing rocks. At 7:08, or 8 minutes after the arrest, PC Metzger gave him rights to counsel, and cautioned him. Mr. Hill did not acknowledge the rights to counsel. In cross-examination, both PC Metzger and PC Vukovic agreed that they had grounds to arrest Mr. Hill for aggravated assault. Mr. Hill gave the police his name. The police confirmed his identity through a picture in the in-car computer system. The in-car video was played in court. Mr. Hill was rambling, according to PC Metzger. He appears to be rambling on the in-car video.
[5] The officers called for a court wagon, which brought Mr. Hill back to 14 Division. He arrived at 7:16 am. The officers informed Mr. Hill that he would be on video throughout. He was asked if he understood. He did not respond. At 8:01 am, the officers paraded him before the officer-in-charge of the station, Sgt Townley. PC Metzger requested permission to conduct a strip search. Sgt Townley initially only granted permission for a frisk search. He later granted permission for a strip search when no weapons were found. Sgt Townley asked Mr. Hill if there was a lawyer he particularly wanted to be in touch with. Mr. Hill stated that his lawyer was Stephen Anthony Hill. Sgt Townley also asked him about his mental health status. Mr. Hill mentioned schizophrenia but said that he did not understand what was going on. Mr. Hill did not answer questions about consuming drugs or alcohol or harming himself. Mr. Hill did say that he did not know what he was there for. Sgt Townley stated that he had attacked a bunch of people on the street. Sgt Townley observed that Mr. Hill was “in and out” of responsiveness. As noted, Sgt Townley did not immediately authorize a strip search. He testified that a frisk search must take place prior to a strip search.
[6] The frisk search was conducted on camera. Mr. Hill was wearing a great deal of clothing. The police took each item off one by one and searched it. Mr. Hill was wearing three pairs of pants. When the police got to the innermost pair, the pants kept falling down, exposing his underwear and at one point his buttocks. The proximate cause of this was that the drawstring was removed from this innermost pair – a pair of sweat pants – for obvious reasons. Each time the pants fell down, the officers kept bringing his pants back up to his waist. The officers also kept asking Mr. Hill to hold his pants. He did not.
[7] Sgt Townley indicated that he agreed to elevate the level of search to a strip search because no weapons had been found. He had attacked people on the street with an improvised weapon and the police were concerned that he might still have one. He also thought that Mr. Hill might be in crisis and was concerned that he might harm himself.
[8] Sgt Townley testified that he relied on the booking officer, Special Constable MacDonald, to look up the lawyer named by Mr. Hill and find the contact information. Special Constable MacDonald testified that he used Google and the Law Society website but could not find any record of a lawyer named Stephen Anthony Hill. Sgt Townley asked Mr. Hill whether they had the right name. Mr. Hill did not answer. Sgt Townley assumed that Mr. Hill either got the name wrong or that there was no lawyer by that name. As a result, Sgt Townley decided to facilitate a call to duty counsel.
[9] Special Constable MacDonald facilitated a call to Elle Hassan, who was duty counsel. At 8:13 am the documents record a call to Elle Hassan. Special Constable MacDonald did not have a specific recollection but he most likely made the call and left a message on voice mail. The phone rang and Mr. Hill was placed in the privacy booth.
[10] On the way into the phone booth, Mr. Hill’s pants fell down again. This time the police did not raise them up and he went into the booth with his pants down around his ankles. The officers went into the booth with Mr. Hill, left him there, and proceeded out of the booth. PC Vukovic testified that he was not allowed to go into the booth while a detainee was on the phone. He testified that the phone was ringing, and Mr. Hill picked it up. He could see that Mr. Hill was on the phone.
[11] At 8:13 am a call was made to duty counsel on behalf of Mr. Hill. At 8:15 am Constables Metzger and Vukovic entered the video booth. PC Metzger testified that the call seemed to have ended. PC Vukovic stated “all done”. Mr. Hill said “I’m making a phone call”. PC Vukovic replied “no, we have to make it for you.” The officers then took Mr. Hill out of the video booth and continued the booking process, including continuing with the strip search. The strip search was conducted off camera by PC Vukovic and PC Metzger.
[12] Detective Constable Consack was assigned as the officer in charge. She decided to charge Mr. Hill with several counts of assault, assault with a weapon, aggravated assault, mischief, and fail to comply with probation. She spoke to Mr. Hill in the cells and advised him of his charges. She also advised him that she was executing an arrest warrant for assault causing bodily harm. Mr. Hill said he did not wish to speak to counsel and did not say anything else in response. Instead, he began humming and yelling. DC Consack testified that Mr. Hill appeared to be Indigenous but she was not given any information about his mental health status.
Issues
[13] Mr. Frank, on behalf of Mr. Hill, argues that the police violated his client’s rights in a systematic way that caused significant prejudice to the rights of his client and the administration of justice. He argues that a stay of proceedings is appropriate; or, in the alternative, exclusion of the in-car camera video and the booking video from evidence.
[14] The issues are as follows:
(a) Did the police violate Mr. Hill’s s. 10(b) rights by steering him towards duty counsel and then by interrupting his call with counsel? (b) Did the police violate Mr. Hill’s s. 10(a) rights by failing to advise him of the reasons for his arrest? (c) Did the police violate Mr. Hill’s s. 8 rights by conducting a strip search? (d) What is the appropriate remedy?
Analysis
(a) Did the police violate Mr. Hill’s s. 10(b) rights by steering him towards duty counsel and then by interrupting his call with counsel?
[15] Mr. Frank argues that the police violated Mr. Hill’s right to retain and instruct counsel in three ways: first, Mr. Hill never spoke to his counsel of choice or to duty counsel; second, the police steered Mr. Hill toward duty counsel; and third, the police interrupted Mr. Hill’s call when they took him out of the video booth.
[16] It is difficult to see how the police violated Mr. Hill’s right to speak to counsel of choice when counsel of choice appeared not to exist. I cannot accept that argument.
[17] The police were required to determine if Mr. Hill wished to speak to duty counsel. It is a violation of s. 10(b) for the police to steer a detainee towards duty counsel where the detainee has expressed a desire to speak to a certain counsel: R. v. Willier, 2010 SCC 37. Sgt Townley’s failure to ask Mr. Hill whether he wished to speak to duty counsel – as opposed to simply calling duty counsel – was a violation. That said, it is unclear what Sgt Townley was supposed to do. Mr. Hill did not answer when Sgt Townley pointed out that they could not find a record of Stephen Anthony Hill. Sgt Townley asked him if he would like to speak to anyone else. He only called duty counsel when he could not get an answer from Mr. Hill.
[18] Respectfully, this was a violation in the most technical sense. Sgt Townley understood that Mr. Hill was undergoing some kind of mental health issue. It is understandable that he facilitated a call to duty counsel rather than facilitate no call at all. The police were required to make reasonable efforts to put the detainee in touch with counsel: R. v. Canavan, 2019 ONCA 567. This is not a case like R. v. Traicheff, 2010 ONCA 851. In that case, the police did not wait a sufficient time for counsel of choice to call back and chose to make a call to duty counsel instead. Here, Mr. Hill named a counsel who appeared not to exist.
[19] There were, however, other problems with the way that the police responded. The police were not in compliance with their own policy. Sgt Townley agreed in cross-examination that under the new policy he was required to give a detainee the opportunity to speak to counsel prior to a strip search. He testified that it was a new policy, and agreed that he did not re-read Mr. Hill his rights when he authorized the strip search. He also did not facilitate another call to counsel. He readily admitted that he got the policy wrong. Failure to comply with a police policy does not amount to a Charter violation but is simply a factor for a court to consider.
[20] More importantly, I agree with Mr. Frank that the police acted prematurely in entering the video booth and taking Mr. Hill out. That was the pith and substance of the Charter violation.
[21] In considering whether a violation occurred, I cannot find as a fact that Mr. Hill was in contact with duty counsel in the sense that he spoke to counsel and received legal advice. It seems clear that the call was facilitated, and it appears that duty counsel called back. Unfortunately, when the call seems to have ended – and it was a very short call – no officer verified with Mr. Hill that he had spoken to duty counsel. That was a failure. PC Metzger testified that he had some training in dealing with people with mental health issues. He was suspicious that Mr. Hill’s behaviour may have been from drugs, mental health issues, or a combination of both. It was, however, not at the forefront of his mind. He agreed that Mr. Hill may have been homeless; the many layers he was wearing was consistent with people who are homeless. PC Vukovic also testified that he has had training on dealing with persons with mental health issues. He suspected that Mr. Hill had mental health problems. I find that under those circumstances it was important that the police be satisfied that Mr. Hill actually spoke to counsel. Although there is evidence that Duty Counsel Hassan was put through to the booth, I am not satisfied, based on Mr. Hill’s reaction, that they actually spoke.
[22] Further, when Mr. Hill indicated that he needed to make his call, the police should have investigated what he meant even if they thought he had spoken to duty counsel. Clearly, the police are not required to follow up with everything everyone says – there are obviously occasions where people are untruthful or hyperbolic with police – but in these circumstances, given Mr. Hill’s issues, they needed to do more. When the call appeared to be finished – as it was after a very short period of time – the police made no effort to investigate whether Mr. Hill had actually spoken to counsel, received advice, or had even spoken to duty counsel. The police were obliged to at least ensure that he had spoken to a lawyer. They weren’t necessarily obliged to make another call for him, or to facilitate a call to a different lawyer if he wasn’t satisfied with the one he spoke to (although they might have been depending on the circumstances), or satisfied with the advice, but they were required to ensure that his right to counsel had been fulfilled. With respect, this they did not do. I therefore find that there was a violation of the implementational component of s. 10(b) of the Charter.
(b) Did the police violate Mr. Hill’s s. 10(a) rights by failing to advise him of the reasons for his arrest?
[23] Mr. Frank argues that the police failed to inform Mr. Hill of the extent of his jeopardy when he was arrested. He was arrested for assault with a weapon. He was not told that he was being charged with aggravated assault, multiple counts of assault with a weapon, assault, and mischief. He did not understand that he was facing much more serious charges than an assault with a weapon charge.
[24] Respectfully, I disagree, based simply on the facts in this case. The initial arresting officers did not have the full picture of Mr. Hill’s alleged criminality. They were there to find and arrest Mr. Hill. Their job was not to gather evidence. They had to deal with a dangerous situation – a person randomly attacking other people for no rhyme or reason. Constables Metzger and Vukovic did not have the luxury of time to gather all the evidence, and then decide which charges to lay. All they knew was that someone was assaulting others with an improvised weapon of some kind and throwing rocks. They did agree that they had grounds to arrest Mr. Hill for aggravated assault. There is no requirement in law for a police officer to arrest (or charge) a person for every possible offence made out by the available information. Their decision was to arrest him for assault with a weapon. As they testified, it was another officer’s decision to charge him with something more serious.
[25] That other officer was DC Consack, the officer in charge. She gathered the information and informed Mr. Frank at 9:55 am that he was to face more serious charges, including aggravated assault and that the warrant in the first for assault causing bodily harm was being executed. She read him his rights to counsel at that point and cautioned him. She believed he understood.
[26] I find that the decision to lay more serious charges was not made until after Mr. Hill had been paraded before Sgt Townley. I also find that DC Consack gave Mr. Hill his rights to counsel again when she informed him of his more significant jeopardy. He told her he did not wish to speak to a lawyer at that time. I find it difficult to see any breach of s. 10(a) on these facts. If there was a breach – and I am not satisfied that there was – it was a trivial breach.
(c) Did the police violate Mr. Hill’s s. 8 rights by conducting a strip search and leaving him in a state of undress?
[27] Mr. Frank argues that the police breached Mr. Hill’s s. 8 Charter rights in two ways: first, Mr. Hill was half-naked and in a state of undress. Mr. Hill had a reasonable expectation of privacy in the booking hall. The police did nothing to make sure that he was properly clothed. By letting his pants continually fall, it was an affront to Mr. Hill’s dignity. It is implausible that the police did not notice that his pants were down in the video booth. Mr. Frank does not suggest that there was any malintent on the part of the police, but it is irrelevant that they had no intention to humiliate Mr. Hill. The true violation was the failure to ameliorate the falling of the pants. In this, Mr. Frank relies on R. v. Mok, 2014 ONSC 64.
[28] Mr. Frank further argues that the police breached Mr. Hill’s s. 8 rights by conducting a strip search without reasonable and probable grounds. The pat-down search was enough to show that Mr. Hill did not have a weapon. They had no reason to believe he had any weapons secreted. When his pants fell down no weapons were found. Detective Constable Metzger testified that it was routine policy to conduct a strip search where the police charged a detainee with a weapons offence but did not find a weapon during the frisk search. This amounted to an unconstitutional policy. In this Mr. Frank relies on R. v. Golden, 2001 SCC 83.
[29] I disagree with both arguments. In my respectful view neither Mok nor Golden apply.
[30] In Mok, the accused was heavily intoxicated when she left a pub. The pub staff tried to prevent her from driving, but she insisted and got into her car. The staff called the police, who arrested her. She was taken to a police station and samples of her breath were taken. The officer-in-charge of the station decided she was too heavily intoxicated to safely release and lodged her in a cell. There were video cameras throughout the station, including videos of the cells. The accused was filmed twice while using the toilet. She was fully exposed to the video camera. The trial judge found that the routine videotaping of detainees using the toilet was a violation of s. 8. It undermined the detainee’s privacy, dignity, and autonomy and was not outweighed by the state’s legitimate interest in monitoring the cell area for safety concerns and the preservation of evidence. The finding was upheld by the summary conviction appeal judge. The trial judge granted a stay of proceedings, but the stay was reversed on appeal.
[31] This case is distinguishable from Mok. Intentionality is not completely irrelevant. In Mok, the police would have known that intimate images would be taken since the toilet was under surveillance. The police were indifferent to the invasion of privacy; indeed, it as a systemic violation by the whole police force. As well the police took no steps to ensure that the monitoring officers were of the same gender of the detainee.
[32] In contrast, the police officers in this case could not reasonably have anticipated that Mr. Hill’s pants would keep falling and that Mr. Hill would continually fail to hold them up; indeed, there was evidence that he seemed to be making them fall down. Moreover, each time his pants did fall, the police did lift them up. Mr. Hill himself, who was handcuffed to the front, made no effort to keep his pants from falling. As well, Mr. Hill was wearing underwear. At no time did the police remove all his clothing so that he was exposed and naked to the camera, nor was it part of their procedure. A strip search requires that there be a removal of clothing or a rearrangement so that the private areas can be searched: R. v. Choi, 2021 BCCA 410; R. v. Pilon, 2018 ONCA 959. This did not happen. It is true that Mr. Hill’s pants fell as he was being taken into the video booth and his pants remained down while he was in the booth. I agree with Mr. Frank that it is unlikely that no police officer noticed. On the other hand, I’m not sure what the police were supposed to do once he was in the booth – they could not very well barge in while he was in the middle of his call to duty counsel in order to simply lift up his pants. That would almost certainly have resulted in a different Charter violation. I find no violation of s. 8 in these circumstances.
[33] In Golden, the police observed the accused conducting what they believed were drug transactions. They arrested the accused and conducted a pat-down search. When the pat-down search failed to reveal any drugs, the police conducted a public strip-search. They found cocaine secreted in the detainee’s buttocks. The majority of the Supreme Court of Canada found that even where the police have reasonable and probable grounds to arrest (and therefore reasonable and probable grounds to conduct a search incident to arrest) they cannot, as a matter of routine, strip search detainees. The police must have reasonable and probable grounds to justify a strip search. The search must also be conducted in a manner that does not violate s. 8 of the Charter.
[34] As this was a warrantless search, the burden is on the Crown to show that it was justified. In my view, it was. I agree that the police had the necessary grounds to conduct a strip search.
[35] PC Metzger testified that he requested the strip search because the police had not found a weapon – and Mr. Hill was under arrest for assault with a weapon. He was suspicious that Mr. Hill continued to have a weapon despite not finding one in the strip search. He was not sure where a weapon could be. He had experience with prisoners who had weapons under the armpits and in their buttocks. PC Vukovic testified to much the same thing.
[36] Sgt Townley testified that the Toronto Police procedure for strip searches had recently changed. What had been called a Level III search was now called a strip search. The criteria for strip searches had narrowed. As well, a detainee could contact a lawyer prior to the strip search. He was aware that the procedure had changed because the Toronto Police were conducting far more strip searches than other police forces. He testified that the arresting officers must obtain permission from a senior officer to conduct a search. He initially granted permission for a frisk search, but when the frisk search failed to reveal a weapon, he granted permission for a strip search.
[37] In my view, it was reasonable for Sgt Townley to permit a strip search. It was possible Mr. Hill still had a weapon. The officers testified to experience with the possibility of weapons being secreted in the buttocks, armpit, and groin areas.
[38] I think that the police are entitled to some deference in this area. This is not a situation where the police have deference because they must make a quick decision in a dynamic situation where there might be weapons or other dangers to the public. Rather, there must be some deference to the experience and knowledge of the police officers who have dealt with similar situations. Given that this was a controlled, and not dynamic situation that deference has limits. That said, the police officers all testified to experience with detainees who have hidden weapons in their buttocks, groin, or armpits. The police found rocks in Mr. Hill’s clothing (he was allegedly throwing rocks) during the frisk search but no weapon, although it was clear that an improvised weapon of some kind had been used. The police surprised Mr. Hill when he was arrested and only arrested him after a foot chase. There was no evidence that the arresting officers saw Mr. Hill discard a weapon during that chase. In my view, on a purely factual basis there were grounds to search for a potential weapon.
[39] PC Metzger testified that he thought it was routine to search in this way. I do not, however, agree that this case is similar to R. v. Mohamed, 2020 ONCA 9 at para. 16. D.C. Metzger’s evidence is clearly contradicted by Sgt Townley, who had the authority to make the decision – D.C. Metzger did not. PC Metzger had only a year of experience as a police officer at that point. Sgt Townley was very experienced, and in my view he was candid with the court about his own failure to comply with an aspect of the new Toronto Police strip-search policy. Sgt Townley was the one who permitted the strip search, not PC Metzger. Sgt Townley testified that he did not routinely order these searches, and I accept his evidence on the point.
[40] Additionally, Sgt Townley was concerned not just with officer safety, but with the fact that Mr. Hill may have been in the midst of a mental health crisis. He was concerned that Mr. Hill might harm himself. Mr. Hill was subject to a warrant in the first, which means he may well have been going into custody on other charges as well as the charges Sgt Townley was dealing with. Sgt Townley testified that he did not always permit strip searches of people in crisis, but he was concerned in this case about Mr. Hill’s unpredictability. That was also reasonable.
[41] I find no breach of s. 8 of the Charter.
(d) What is the appropriate remedy?
[42] Mr. Frank argues that a stay of proceedings is the appropriate remedy given the significant prejudice to an Indigenous, mentally ill, homeless man. He was simply not treated fairly. The accumulation of violations causes significant prejudice to the justice system.
[43] I agree with Mr. Frank that Mr. Hill merited special concern given these deficits. That is the primary reason I have found a s. 10(b) Charter violation. In my respectful view, however, a stay of proceedings would be a grossly disproportionate remedy. To be fair, Mr. Frank had argued for a stay of proceedings based on multiple of Charter violations; I have only found the one.
[44] A court may grant a stay of proceedings in one of two circumstances: first, where there is prejudice to the accused’s right to a fair trial; or whether the harm to the integrity of the justice system will be manifested or aggravated by the conduct of a trial. A stay can only be granted in the clearest of cases, and there must be no alternative remedy capable of redressing the prejudice: R. v. Babos, 2014 SCC 16.
[45] Crown counsel sets out in his factum the evidence he intends to adduce at Mr. Hill’s trial:
The Respondent seeks to adduce the following at the trial: brief excerpts of the in-car video and still shots from the cruisers of Officers Metzger/Vukovic and Lionti, along with descriptions of the Applicant, including a still shot of the Applicant upon his arrest similar to that used by the one victim to identify him, and still shots and descriptions of the Applicant in the booking area of 14 Division, notably of his clothing and general appearance…. The Respondent intends to ask Officers Metzger and Vukovic about the circumstances of the Applicant’s arrest, and has advised defence of its intent to bring a count-to-count similar fact evidence application at the trial with respect to the circumstances of the attacks and arrest and descriptions of the attacker.
The Respondent does not seek to adduce the entirety of the in-car camera video, nor does it seek to play the booking hall video for the jury. The Respondent does not intend to adduce any video evidence of the Applicant with his pants down at the police station. The Applicant does not make any utterances on which the Respondent seeks to rely.
[46] Given the limited amount of evidence sought to be introduced by the Crown, I see no ongoing prejudice to Mr. Hill’s fair trial rights by the s. 10(b) violation. The decision to end the call was wrong and heavy-handed, but I characterize the violation as a limited failure of the implementational component of the s. 10(b) Charter right. This is simply not the clearest of cases. A stay of proceedings would be grossly disproportionate.
[47] Mr. Frank argues in the alternative that the prejudice can be remedied by the exclusion of evidence. When I apply the Grant factors, however, I find I cannot agree: R. v. Grant, 2009 SCC 32. Again, to be fair to Mr. Frank, his argument was based on finding multiple violations, and I have found only one.
[48] The first Grant factor is the seriousness of the Charter-infringing state conduct. The main concern of this branch of the test is to preserve public confidence in the rule of law and the administration of justice. As the Grant court identified at para. 71, there is a spectrum of Charter violations. Some violations are trivial; others are serious. The willful or reckless disregard of Charter rights by the police may well have a negative effect on the reputation of the administration of justice.
[49] In this case, the seriousness of the Charter-infringing conduct falls in the middle to high end of the spectrum. The entry into the video booth was, as I have mentioned, heavy handed. The main failure of the police was in the follow up under the circumstances of this case. Overall, this violation was serious.
[50] The second Grant factor is the impact on the Charter-protected interests of the accused person. The court must determine the extent to which the violation undermined the accused’s interests. The Grant court noted as an example that a statement taken in violation of an accused person’s interest against self-incrimination would have a significant impact on their Charter-protected interests.
[51] Here, the violation did not undermine the Charter-protected interests of the accused in a significant way. No statement was taken from Mr. Hill. The Crown does not seek to adduce any other utterances, or any real evidence seized from Mr. Hill. He did, it seems, have contact with duty counsel but the nature of that contact is unclear. Moreover, only a short time later he was given a second opportunity to contact duty counsel. He declined. I find that there was a minimal impact on his Charter-protected interests.
[52] The third Grant factor is society’s adjudication on the merits. Society’s interest in the adjudication in criminal cases on the merits must be weighed against the factors pointing to exclusion. The judge must consider all the circumstances of the case when conducting this weighing process, bearing in mind that the ultimate question is whether admission would bring the administration of justice into disrepute: Grant at para. 85.
[53] When I conduct the weighing process, I find that the evidence should not be excluded. No causal link is required between the violation and the evidence that the Crown seeks to introduce, but in this case there is no temporal or contextual connection either. The Crown only seeks to introduce images that buttress the identification aspect of the case. All photos and videos (from which the Crown proposes to use stills) were taken prior to the violation. When I weigh those factors, including the nature and seriousness of the violation and the impact on Mr. Hill, I find that the evidence should not be excluded. The evidence itself was not taken in violation of any right; it consists of likenesses of Mr. Hill rather than any statement or evidence seized from him. Despite the seriousness of the violation, I find that the balance tips towards inclusion. The administration of justice would not be brought into disrepute by the admission of stills and photos of the likeness of Mr. Hill taken prior to any Charter violation.
Disposition
[54] The application is dismissed.
R.F. Goldstein J.
Released: October 5, 2023