CITATION: R. v. Brown, 2010 ONCA 622
DATE: 20100928
DOCKET: C47762
COURT OF APPEAL FOR ONTARIO
Laskin, Sharpe and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Rodney Brown
Appellant
Michael Dineen, for the appellant
Karen Papadopoulos, for the respondent
Heard: September 17, 2010
On appeal from the conviction entered by Justice Arthur M. Gans of the Superior Court of Justice on March 29, 2007 and the sentence imposed on May 14, 2007.
By the Court:
[1] The central issue on this appeal is whether there are errors in the trial judge’s ruling that a statement made by the appellant was proven by the Crown to be voluntary.
FACTS
[2] The circumstances surrounding the statement were unusual. Early one November morning, the police executed a search warrant at an apartment in which the appellant was found. The search warrant was executed following the deployment of stun grenades by the Emergency Task Force. The appellant and other occupants of the apartment, lightly clothed, were forced to the ground, handcuffed and then led outside the apartment into the hallway. The officer in charge of the situation gave the appellant abbreviated information as to his right to counsel but did not caution the appellant as to his right to remain silent. Windows were opened to clear smoke from the stun grenades and the temperature dropped. The appellant and the other occupants were cold and shivering. The police retrieved shoes and coats from the apartment. The appellant did not identify any of the coats initially retrieved as belonging to him. When asked where his coat was, the appellant told the officer that it was on a chair in the living room. Another officer had previously found a firearm under the coat.
[3] The Crown sought to lead the appellant’s statement as to the location of his coat to link the appellant to the firearm. The trial judge conducted a voir dire to determine its admissibility under both the Canadian Charter of Rights and Freedoms and under the rule requiring the Crown to prove that it was made voluntarily.
[4] The trial judge found that there was a breach of the appellant’s s. 10(b) Charter right to counsel but that the breach was not a serious one as the appellant was given some information as to his right to counsel, and that the statement should be admitted pursuant to s. 24(2). The trial judge also found that the Crown had proved beyond a reasonable doubt that the statement was voluntary. He admitted the statement into evidence.
[5] The appellant was convicted of several counts, including possession of a loaded restricted weapon and careless storage of a firearm, and sentenced to 7 months imprisonment and 2 years probation in addition to time served of 14 months.
ISSUES
[6] While the appellant challenges both aspects of the trial judge’s ruling, we find that it is only necessary for us to deal with the issue of voluntariness.
ANALYSIS
[7] For the reasons that follow, we have concluded that there are three errors in the trial judge’s reasons that undermine his finding that the Crown proved that the statement was voluntary. It follows, in our view, that the ruling cannot stand and that a new trial is required on the counts affected, namely count 3, possession of a loaded restricted firearm, and count 5, careless storage of a firearm.
1. The absence of a caution
[8] The most significant shortcoming in the trial judge’s reasons as to voluntariness is the following finding:
Mr. Brown was also provided with a caution, although not the full caution, which indicates that he would have an awareness of what was at stake when he indicated that his coat was in the living room, and when he further acknowledged that the coat brought out to him was indeed his.
[9] It is clear from the record and, in particular, from the evidence of the officer who dealt with the appellant at the scene, that the appellant was not cautioned before he made the statement concerning his coat. The appellant was given partial information as to his right to counsel but the officer admitted that at no time did he caution the appellant of his right to remain silent or that any statement he made could be used in evidence against him.
[10] Where, as here, the accused was detained, whether or not formally arrested and charged, the presence or absence of a caution is a factor, and in many cases an important factor, in answering the ultimate question of voluntariness. This well-established principle was reiterated by Charron J. in R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 at paras. 31 and 33. The trial judge’s erroneous finding that a partial caution had been given was a legal error that had a direct bearing upon the issue of voluntariness.
2. The inducement to answer because of the cold
[11] It was undisputed that the appellant was cold and shivering as he stood handcuffed in the hallway. In his reasons dealing with the alleged Charter violation, the trial judge concluded that the appellant “would have expressed ownership of the subject coat simply because it was cold at the time of the early morning raid and on the evidence, Mr. Brown was cold.” However, when it came to the issue of voluntariness, the trial judge failed to take into account the fact that the appellant had answered the question about his coat because he was cold.
[12] The appellant was handcuffed, thinly clothed and shivering after having been roused from sleep by a stun grenade. The appellant was entirely in the control of the police, and, as found by the trial judge, he was motivated to answer the question about his coat by the fact that he was cold. In our view, the trial judge erred by failing to take that finding into account in assessing the voluntariness of the statement.
3. Misapprehension of the evidence
[13] Related to the second point is the trial judge’s finding that, before answering the question as to the whereabouts of his coat, the appellant had “already declined the offer of the other jackets in the closet, even the ones not claimed by his mates.” This suggests that the appellant was offered a choice of means to escape the cold. If that had been established, it would bear upon the voluntariness of his answer to the question about his coat.
[14] We agree with the appellant’s submission that the trial judge’s finding that the appellant “declined the offer of other jackets” indicates a misapprehension of the evidence. The appellant was not offered other jackets. A review of the record and of the evidence of the officers involved indicates that the procedure involving the provision of the coats to the occupants of the apartment was that a police officer brought the jackets from the closet one by one and asked the appellant and his confederates if any of them owned that jacket. If no one claimed the jacket as his own, it was returned to the closet. It was only after the supply of jackets from the closet had been exhausted that the appellant was asked as to the whereabouts of his jacket. While perhaps not as significant as the other two errors, when considered as a whole, the trial judge’s ruling presents a misleading picture of what happened. The appellant was not offered a selection of jackets from which he could choose to keep warm; the appellant was offered only one choice, namely, to identify the jacket that was his.
CONCLUSION
[15] In our view, these errors undermine the trial judge’s finding that the Crown had established beyond a reasonable doubt the voluntariness of the impugned statement. In the result, we allow the appeal, set aside the convictions on counts 3 and 5, and order a new trial. The appellant has served the sentence and as the sentence appeal was not pursued in argument, leave to appeal sentence is denied.
“John Laskin J.A.”
“Robert J. Sharpe J.A.”
“Gloria Epstein J.A.”
RELEASED: September 28, 2010