COURT OF APPEAL FOR ONTARIO

DATE: 20000417

DOCKET: C28599

DOHERTY, ROSENBERG and SHARPE JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN
Respondent

• and -

DEON RICKETTS
Appellant

Lisa Freeman
for the appellant

Fergus O’Donnell
Candice Welsch
for the respondent

Heard: April 3, 2000

On appeal from the conviction by Justice G. Epstein, sitting with
a jury, dated October 15, 1997.

BY THE COURT:

I

[1] The appellant was convicted of importing marijuana. By the
end of the trial, her culpability in the scheme was established
beyond any doubt. The focus of the appeal (and to a large
extent, the trial) was not on the appellant’s culpability, but on
the process by which the police gathered the evidence relied on
by the Crown at trial. The appellant contended that the police
had violated her constitutional rights in several ways during the
very brief investigation. The argument on appeal centred on the
appellant's contention that the search of her apartment violated
her constitutional right to be secure against an unreasonable
search and seizure.

[2] The Crown’s case depended in large measure on material
seized from the appellant’s apartment pursuant to a search
warrant. In obtaining the search warrant, the police relied on
the appellant’s admissions to them that she had some marijuana in
her apartment. It was argued at trial that the appellant’s right
to counsel under s. 10(b) of the Charter was breached before the
admissions were made and that the admissions should have been
excluded under s. 24(2) of the Charter. It was also argued that
the admissions should have been excised from the information used
to obtain the warrant to search the appellant’s apartment and
that without the admissions the warrant could not have been
granted. It was further argued that without the warrant, the
search violated s. 8 of the Charter and the seized material
should have been excluded from evidence. Those arguments failed
at trial and were renewed on appeal.

II

[3] A large amount of marijuana was shipped from Texas to the
Federal Express office in Toronto. The personnel at the Federal
Express office had received an anonymous tip indicating that the
marijuana would arrive at their office. The police were
contacted and decided to effect a controlled delivery of the
marijuana to its intended destination, a hotel in Toronto. The
appellant worked at that hotel. After the drugs had been
delivered to the hotel, the police received information
indicating that the appellant had dispatched a cab driver to pick
up the package and deliver it back to the hotel. They decided to
interview the appellant. Two officers directed her to the
manager’s conference room. They closed the door and questioned
her. The appellant was not advised of her constitutional rights
under s. 10(b) of the Charter. The Crown took the position that
she was not detained during this interview. The trial judge
disagreed and held that she was detained and that anything said
in the first interview should be excluded under s. 24(2) of the
Charter. We agree with both conclusions.

[4] In a statement given during the first interview (the first
statement), the appellant gave an exculpatory explanation for her
involvement in the delivery of the packages containing the
marijuana. She claimed that she had sent the cab driver to pick
up the packages at the request of a guest in the hotel. She did
not know the guest and insisted that she did not know there was
contraband in the packages. It became clear during the interview
that the police did not believe the appellant’s explanation. It
was, to say the least, difficult to believe. The first interview
ended with the following comment by one the officers:

We’ll give you some time to think about this and there are
some things we want to get clear with the hotel management.
Be right back.

[5] The officers spoke with the manager of the hotel who gave
them certain additional information which further undermined the
believability of the appellant’s explanation. The officers
decided to arrest the appellant. About five minutes after they
had left the room the officers returned and arrested the
appellant. She had been in the room alone in the intervening
five minutes. The appellant was advised of her rights under s.
10(b) of the Charter. The trial judge found that she understood
those rights and chose not to exercise them.

[6] In the second interview, the police continued their
questions about the delivery of packages to the hotel. They then
asked the appellant where she lived and suggested to her that
similar packages had been delivered to her home. The police, in
fact, had no knowledge of any such deliveries. The appellant
denied this. The police then asked whether she had any marijuana
in her home. The appellant indicated there was a small amount
belonging to her brother (the second statement). The officers
decided to take the appellant to her apartment hoping she would
allow them to search the premises. In the car on the way to her
home, in answer to certain questions, the appellant again
indicated that there was a small amount of marijuana in her
apartment (the third statement).

[7] The appellant eventually decided not to permit a search of
her apartment and the police obtained a search warrant. The two
admissions made by the appellant were relied on in the
information sworn to obtain the warrant.

[8] The trial judge found that s. 10(b) was not infringed by the
taking of the second or third statements. She held that the
appellant, with full knowledge and understanding of her right to
counsel, chose to speak to the police. She further held that had
she concluded there was a violation of s. 10(b), she should not
have excluded the evidence under s.24(2). In effect, the trial
judge found that there was no connection between the first
statement and the subsequent statements, and that therefore any
violation of s. 10(b) prior to the obtaining of the first
statement had no effect on the making of the second and third
statements. The controlling case law does not support this
approach to the admissibility of the second and third statements.

[9] Where the police obtain a statement in violation of s. 10(b)
of the Charter, then comply with s. 10(b) and obtain a subsequent
statement, the admissibility of the subsequent statement must be
determined under s. 24(2) of the Charter: R. v. T.(E.) (1993),
1993 51 (SCC), 86 C.C.C. (3d) 289 at 306 (S.C.C). To exclude the subsequent
statement, an accused must show that the statement was “obtained
in a manner” that infringed s.10(b) and that its admission could
bring the administration of justice into disrepute. Both
inquiries require an examination of the temporal, contextual and
causal connection between the statement taken before the s. 10(b)
rights were provided and the subsequent statement.

[10] A close temporal connection between a statement given before
compliance with s. 10(b) and one given following compliance with
that section will suffice to establish that the subsequent
statement was taken in a manner that infringed s. 10(b): R. v.
Caputo (1997), 1997 1636 (ON CA), 114 C.C.C. (3d) 1 at 14 (Ont. C.A.). In this
case, only about five minutes passed between the first and second
statements. The third statement followed very closely after the
second. The temporal connection was enough to require the
conclusion that the second and third statements were obtained in
a manner that infringed s. 10(b) of the Charter.

[11] Ms. Freeman, counsel for the appellant in a well framed
argument, has convinced us that there was more than a temporal
connection between the first statement and the subsequent
statements. The second statement is essentially a continuation
of the first. Near the conclusion of the first statement, the
police told the appellant that this was her opportunity to assist
them in their investigation. After making it clear that they did
not believe her explanation, they told her she should think about
it some more and that they would come back to speak with her.
Five minutes later they returned, and after advising her of her
right to counsel, continued with the questions concerning the
delivery of packages to the hotel. They then connected those
packages to her home by suggesting that similar packages had been
delivered to her home. After denying that suggestion, she made
the admission on which the Crown relied in obtaining the search
warrant.

[12] The contents of the second statement flowed from the
contents of the first. The question that led to the appellant’s
admission was a logical progression in the line of questioning
developed in the first interview and continued into the second.
The two statements were really part of the same conversation.
The third statement was merely an amplification of the second.
All of the statements were part of a single transaction. The
breach of the appellant’s rights under s. 10(b) was an integral
part of that same transaction: R. v. Caputo, supra, at pp. 14-
15.

[13] Ms. Freeman has also satisfied us that there was a causal
connection between the first statement and the subsequent
statements. In the first statement, made before the appellant
was advised of her rights, she admitted a connection with the
packages containing the marijuana, albeit she claimed the
connection to be an innocent one. The police left the appellant
alone after making it clear that they wanted her assistance, that
they did not believe her initial explanation and inviting her to
think about her explanation. They returned some five minutes
later to continue the questioning. The appellant had to know
that the police were not satisfied with the first explanation.
In these circumstances and despite having been told of her rights
under s. 10(b), we are satisfied that the appellant would feel
under some compulsion to answer the officers’ questions in the
hope that she could convince them she was not complicit in the
delivery of the marijuana to the hotel. The police had started
the appellant down the road to self-incrimination without
advising her of her right to counsel and invited her to continue
that journey after making it clear that they were not satisfied
with her first explanation. Their subsequent compliance with s.
10(b) did not dissuade the appellant from continuing down that
road.

[14] The temporal, contextual and causal connections between the
first statement and the second and third statements satisfy us
that the second and third statements were obtained in a manner
that breached the appellant’s constitutional right to counsel.

[15] The appellant’s admissions were conscriptive in nature.
Generally speaking, such evidence is excluded because of its
adverse effect on the fairness of the trial: R. v. Burlingham
(1995), 1995 88 (SCC), 97 C.C.C. (3d) 385 at 402 (S.C.C.); R. v. Stillman
(1997), 1997 384 (SCC), 113 C.C.C. (3d) 321 at 364-65 (S.C.C.).

[16] The Crown has not satisfied us that the appellant would have
made the relevant admissions had she been advised of her right to
counsel prior to the making of the first statement. Had that
advice been given, it is as likely as not that the appellant
would not have tried to explain away her connection to the
packages by giving a statement to the police. Absent the making
of the first statement, it is unlikely that the subsequent
statements would have followed. The admissions made in the
second and third statements should have been excluded.

[17] The admissions themselves were not probative of the
appellant’s guilt. Their admissibility was relatively
unimportant. Those admissions were, however, relied on to obtain
the warrant to search the appellant’s apartment. It was that
search which produced the overwhelmingly incriminating evidence.

[18] Where the police rely on information in their possession as
the result of a Charter violation to obtain a search warrant, the
court must decide whether the warrant could properly have been
granted based on information other than that secured by a
constitutional violation: R. v. Grant (1993), 1993 68 (SCC), 84 C.C.C. (3d) 173
at 195 (S.C.C.). In making that evaluation, the court will look
at the remaining material in the information used to obtain the
search warrant as modified or augmented on the exclusionary
hearing at trial.

[19] Having reviewed the relevant material, we are satisfied that
absent the admissions, there was no basis to issue the warrant to
search the appellant’s apartment. The police cannot rely on the
warrant to justify the search. Without the warrant, the search of
the appellant’s apartment violated the rights under s. 8 of the
Charter. The product of the search constitutes evidence obtained
in a manner that infringed the appellant’s constitutional rights.
The admissibility of that evidence had to be determined under
s.24(2) of the Charter.

[20] The seized material was real evidence. It was, however,
discovered by virtue of a search which was precipitated by
admissions made by the appellant in circumstances that violated
her rights under s. 10(b) of the Charter. The seized material
is, therefore, properly characterized as “conscriptive real
evidence”: R. v. Stillman, supra, at p. 359. Its admission
would adversely affect the fairness of the trial. Section 24(2)
of the Charter will generally require the exclusion of such
evidence subject to the Crown satisfying the court that the
evidence would inevitably have been discovered or would have been
discovered by other means which did not involve a violation of
the appellant’s constitutional rights: R. v. Stillman, supra, at
pp. 361-62.

[21] Mr. O’Donnell, for the Crown, has tried to persuade us that
apart entirely from the appellant’s admissions, the investigation
would inevitably have led the police to conduct a timely search
of the appellant’s apartment. This submission is not without
attraction, however, the evidentiary basis for it was not
adequately developed at trial. Consideration of the “inevitable
discovery” doctrine will necessarily involve some degree of
speculation as to what might have happened. That speculation
cannot, however, proceed in the absence of any evidence as to
alternative investigative options open to the police in the
particular circumstances. The Crown did not discharge the burden
of showing on the balance of probabilities that apart from the
appellant’s admissions the police would have obtained a warrant
to search the appellant’s apartment, executed that warrant and
obtained the incriminating evidence.

[22] The material seized from the appellant’s apartment should
have been excluded under s. 24(2) of the Charter. Without that
material, there is no basis upon which a reasonable jury,
properly instructed, could have convicted the appellant.

III

[23] The appeal is allowed, the conviction is quashed and an
acquittal is entered.

Released: APR 17 2000 “DD”

“Doherty J.A.”
“M. Rosenberg J.A.”
“Robert J. Sharpe J.A.”