WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society's interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15 ; 2015, c. 13, s. 19

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court Information

Court of Appeal for Ontario

Date: 2017-05-16

Docket: C55787 and C55788

Panel: Watt, van Rensburg and Pardu JJ.A.

Parties

Between

Her Majesty the Queen

Respondent

and

Damion Dicketta Pearson

Appellant

Counsel

Mark Halfyard and Breana Vandebeek for the appellant

Benita Wassenaar and Howard Leibovich for the respondent

Hearing

Heard: March 30, 2017

On appeal from: the convictions entered on June 4, 2011 and December 6, 2011 by Justice Bruce A. Glass of the Superior Court of Justice, sitting with a jury.

Decision

Pardu J.A.:

[1] Introduction

[1] The appellant was convicted by two different juries of the two separate murders of Khristian Ottley and Jeffrey Warne, which were committed two weeks apart in January 2008. Although the murder trials were severed, the trial judge made certain pre-trial rulings related to the admissibility of evidence that applied to both proceedings.

[2] The appellant submits that the trial judge made the following errors in his pre-trial rulings:

1. The appellant's statements to police on April 15 and 16, 2008 should not have been admitted because they were not voluntarily made.

2. Shotgun shells found in the appellant's car during a traffic stop on January 15, 2008 should have been excluded because the search of the appellant's car was not incidental to his arrest for impaired driving.

3. The appellant's statement to the police on February 19, 2008, made while he was sitting in the back seat of a police car after police again found shotgun shells in his car during a traffic stop, should have been excluded because it was obtained in a manner that breached the appellant's right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms.

4. Bad character evidence that the appellant showed a shotgun to two different friends in December 2007, possessed shotgun shells and had plans to rob a drug dealer should have been excluded because the probative value of the evidence was outweighed by its prejudicial effect.

A. Khristian Ottley

[3] The position of the Crown at trial was that the appellant and three companions – A., James and Campbell – drove to a secluded area near Pickering, Ontario where Ottley met them, driving his own car. According to the Crown, the appellant got in the back seat of Ottley's car, fired a shotgun through the seat and killed Ottley. This was supported by the appellant's and Ottley's cell phone records and by the evidence of A. and James. The motive for the shooting was a disrespectful remark that Ottley made about a nickname for the appellant. The appellant told police he was present at the time of the killing but that someone named "Crisis" was the killer. At trial, he said this was untrue and that A. was the killer.

B. Jeffrey Warne

[4] Warne was a known drug dealer in Pickering. The Crown alleged that the appellant shot Warne or directed the shooting when he and two others went to Warne's house to commit a robbery. The appellant admitted to police and at trial that he had been casing out Warne's house with Campbell with a view to committing the robbery. He told police that he planned to commit the robbery and that he broke into the house and saw the shooting. At trial, he said he was outside in the car, that he did not go into the house and that Campbell and two other males committed the offence. The appellant had knowledge that would have only been available to someone who saw or participated in the shooting. Warne had complained to police that he thought someone was casing his residence and had recorded the licence plate number belonging to the appellant's car as the suspect vehicle.

C. The Statements of April 15 and 16, 2008

(1) Factual Background

[5] During their investigations, police began to uncover evidence leading them to suspect that the appellant might be connected to the killings of both Ottley and Warne. Cell phone records showed that the appellant was the last person to speak to Ottley before he was killed. Warne complained to police about the appellant's car loitering near his home. Police knew the appellant had been found with shotgun shells close in time to the dates of the killings. The Centre of Forensic Sciences said the shotgun shells seized from the appellant were similar to those used in the Ottley and Warne killings.

[6] On March 20, 2008, Det. Haight went to the appellant's home. After learning that the appellant was not there, he left a business card asking the appellant to call him. He also spoke to the appellant's lawyer and indicated that the appellant's name had come up in an investigation, that the appellant was a friend of Ottley and that police wanted to talk to the appellant. The appellant called Haight and left a voicemail message for him.

[7] On March 24, 2008, Haight met with the appellant and drove him to the police station for a recorded interview. The appellant was told he did not have to speak to police and that he was neither detained nor charged. The appellant told police he had spoken to his lawyer before coming in for the interview. He told police he did not kill Warne or Ottley, that he did not see Ottley on the night Ottley was killed and that he did not know who Warne was or that Warne was killed. He was prepared to submit to a polygraph test.

[8] On April 10, 2008 the appellant called the police. He was upset that the police were interviewing his family and friends. He wanted to take the polygraph test. He told the police to leave a telephone message with his lawyer to advise him of the date and time of the polygraph examination. On April 14, 2008, Haight left a message with the lawyer advising that the test was scheduled for the next morning.

[9] On April 15, 2008, the appellant was brought to the police station for the polygraph test. In reasons reported at 2011 ONSC 1485, the trial judge described the unfolding of the events at paras. 34-37:

On April 15, 2008, Detective Haight and Detective Airey picked up Mr. Pearson to take him to the Pickering police office for Durham Regional Police. Prior to the polygraph examination, Detective Nadeau explained the process and confirmed that Mr. Pearson did not have to speak with the police, that he could leave whenever he wished, and that the examination was being done with respect to the Jeff Warne homicide. Detective Nadeau told Mr. Pearson that the results of a polygraph examination could not be used in court, but he explained that comments made by Mr. Pearson during the polygraph examination could be used in court. He asked Mr. Pearson to explain in his own words what he understood this to mean. By his answers, Mr. Pearson understood that he could leave, that he could refuse to participate in the questions and answers, and that any comments he made could be used in court. Detective Nadeau asked if the defendant wanted to speak to a lawyer before starting. He did not want to do so. Detective Nadeau also told the defendant that if it were determined that he killed Jeff Warne, he would be charged with murder. The accused man understood this.

After reviewing the questions that were to be used for the polygraph examination, the test was performed. Detective Nadeau left the room to complete his analysis of the test answers and returned to advise Mr. Pearson that the result indicated that he was being deceptive.

Detective Nadeau continued to ask questions after reporting the results of the polygraph examination. The questions expanded to the Khristian Ottley homicide as well.

Then, Detective Haight entered the room and asked questions until Mr. Pearson stated that he wanted to talk with his lawyer. He provided the name of George Aristos, who had represented him in Youth Court. A message was left for Mr. Aristos to call the police station in order that he might talk with Damion Pearson. When no call came, Mr. Pearson asked that Mr. Erskine be called. A message was left for Mr. Erskine, who did call the police station. Mr. Pearson spoke privately with Mr. Erskine. After speaking with his lawyer, Mr. Pearson said that he did not want to talk any more.

[10] During the course of the April 15 interview and polygraph test, the appellant admitted to being present at the killings of both Ottley and Warne. He said that he was standing outside the car in which Ottley was sitting with a passenger in the back seat, heard the sound of the gunshot and saw Ottley's body slumped on the steering wheel. He said that a person named "Crisis" was the shooter. The appellant also gave several inconsistent statements about his involvement in the Warne shooting. At first, he said that he did not know Warne. But he eventually said that he was at the scene of the shooting with a number of other assailants who intended to rob Warne and saw the shooting occur. He did not know that they had guns.

[11] The April 15 interview ended when the appellant asked to speak to a lawyer, received legal advice and refused to speak with police any longer. He maintained that position the next morning on April 16, 2008.

[12] The trial judge concluded at para. 56 of his reasons that the appellant's statements about the Ottley and Warne killings had been voluntarily made:

The Crown has proven beyond a reasonable doubt that the statements were made voluntarily, that the defendant was not deprived of his operating mind, and that his right to silence was not overborne by the police during their questioning. Mr. Pearson wanted to make the statements. He obviously wanted to get the police off of his back, as he said. He was prepared to speak to the police to attempt to do so.

[13] The trial judge addressed the appellant's argument that, because police suspected the appellant of the murder, had reasonable grounds to believe he had committed the offence and failed to caution him again, his statement was made involuntarily. The trial judge cited R. v. Esposito (1985), 53 O.R. (2d) 356 (C.A.), for the proposition that the absence of a caution is not decisive, but may be a factor in assessing whether or not a statement was voluntarily made. He indicated at para. 48 of his reasons that had the appellant become a suspect, with the police intending to charge him with murder, his "jeopardy would have changed dramatically and he would be entitled to be advised of that change along with a caution and advice of Charter rights to speak with a lawyer. That development did not arise with respect to Mr. Pearson."

(2) Analysis

[14] Deference is owed a trial judge's determination of the voluntariness of a statement, provided that the correct test is applied and all relevant circumstances are considered: R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 170.

[15] Deschamps J. summarized the common law confessions rule at para. 12 in Spencer:

In Oickle, the Court recognized that there are several factors to consider in determining whether there is a reasonable doubt as to the voluntariness of a statement made to a person in authority, including the making of threats or promises, oppression, the operating mind doctrine and police trickery. Threats or promises, oppression and the operating mind doctrine are to be considered together and "should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule" (Oickle, at para. 63). On the other hand, the use of "police … trickery" to obtain a confession "is a distinct inquiry … [given that] its more specific objective is maintaining the integrity of the criminal justice system" (para. 65).

[16] Here there was no question of any inducements, threats or police trickery. The argument advanced by the appellant is that he was a suspect as early as March 24, 2008, when the first recorded interview was conducted. He was not cautioned at that time about his right to silence or the consequences of speaking with the police. He relies on a line of Superior Court jurisprudence suggesting that a person being questioned by police should be given an appropriate caution if he or she is, from an objective point of view, classified as a "suspect" rather than a mere "person of interest": see R. v. A.D., [2003] O.J. No. 4901 (S.C.), at paras. 61-75; R. v. Smyth, [2006] O.J. No. 5527, at paras. 81-84; and R. v. Belbin, 2015 ONSC 5346, at paras. 105-111. Consequently, he says, the fact that he was not properly cautioned at the first interview coloured what followed during the subsequent April 15 polygraph interview. He submits that the effect was to undermine the voluntariness of the statements he gave on that subsequent date.

[17] I do not accept this argument for two reasons.

[18] Firstly, I would defer to the trial judge's conclusion that the appellant was not a suspect on March 24, 2008 and not a suspect until he was detained at the end of the interview on April 15, 2008. I agree that, although police had reason to believe that the appellant might be linked in some fashion to the killings of Ottley and Warne, they did not have grounds to arrest him at that time.

[19] Secondly, whether or not the appellant was a suspect, the applicable appellate authority makes clear that, although the absence of a caution is a factor to be considered on the voluntariness inquiry, it is not determinative: R. v. Singh, 2007 SCC 48, [2007] 2 S.C.R. 405, at para. 31. This proposition applies regardless of whether the police do or ought to regard the person being questioned as a suspect. This court's decision in R. v. Bottineau, 2011 ONCA 194, 269 C.C.C. (3d) 227, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 455, is instructive. The appellant in Bottineau argued that the trial judge erred in ruling that his incriminating statements were voluntary because the police failed to provide him with a caution when he was "by any objective standard … a 'suspect' at the time [the police] took his statement rather than a mere 'person of interest' as they professed to him he was": para. 85. This court declined to interfere with the trial judge's ruling. It wrote, at para. 88:

We do not think much turns, in these circumstances, on whether N.K. was a "suspect" or someone more benignly viewed by the police. Even where a person is a suspect, the absence of the standard caution is only one factor to be considered in the voluntariness analysis – just as the presence of such a caution does not automatically lead to the conclusion that a statement is voluntary. As the trial judge noted, "[h]ard and fast rules are incapable of accounting for the myriad circumstances that may vitiate voluntariness," and all the circumstances must be scrutinized carefully: see R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 47 and 71. [Emphasis added.]

Thus, the voluntariness inquiry is a contextual one that considers all the relevant circumstances and eschews rigid and strict rules. See also R. v. Rowe-Boothe, 2016 ONCA 987, at paras. 16-21; and R. v. Pepping, 2016 ONCA 809, at para. 5.

[20] In the present case, it was abundantly clear that, in his interactions with the police as of March 24, 2008, the appellant freely chose to speak to police. At the April 15, 2008 polygraph, he explicitly said to the interviewers, "No one's going to intimidate me. You can't intimidate me." There is no suggestion that his will was overborne by the police.

[21] At the start of the April 15 interview, police told the appellant he was free to leave, that he could stop the polygraph process at any time, that he did not have to speak to police and that what he said could be admissible in court. He signed a consent form confirming that he did not have to say anything and that anything he said could be used in court. He had the benefit of legal advice before both the March 24 and April 15 interviews.

[22] There is no basis to interfere with the trial judge's conclusion that the Crown had proven beyond a reasonable doubt that the statements of April 15, 2008 were voluntarily made.

D. The Search of the Appellant's Car on January 15, 2008

[23] The appellant concedes that the traffic stop of the appellant's car on January 15, 2008 was lawful. The police officer, Smintich, was concerned about impaired driving, given the manner in which the car was operated. When he approached the driver's side of the car he noticed unusual redness to the appellant's eyes. His pupils were dilated and the officer smelled burnt marijuana. The appellant was slow in retrieving his papers and failed field sobriety tests. Smintich arrested the appellant for impaired driving. He searched the appellant's vehicle incident to arrest, finding shotgun shells in a knapsack in the trunk.

[24] The trial judge's reasons for admitting the shotgun shells into evidence are reported at 2011 ONSC 1913. He held at para. 34 that the purpose of the search of the trunk and the knapsack was to "locate evidence helpful to the impaired driving offence" and that the search of the car was lawful and incident to his arrest for impaired driving.

[25] The argument on appeal is that the search incident to arrest went too far. Searching the trunk, and the knapsack found in the trunk, for evidence helpful to the impaired driving offence was unreasonable, and the search should have been confined to the area close to the driver's seat.

[26] I do not accept this argument. The arrest of the appellant for impaired driving was lawful. The search was undertaken to look for marijuana and by a police officer who was not involved at all in the homicide investigations. Discovery of marijuana in the trunk of the appellant's car and in his knapsack would have some probative value on the issue of whether his ability to drive was impaired by marijuana. There was a reasonable basis for the officer's actions and a reasonable prospect of finding evidence of the offence for which the appellant had been arrested: see R. v. Caslake, [1998] 1 S.C.R. 51, at paras. 20 and 22.

E. The Statement of February 19, 2008

[27] Police stopped the appellant's vehicle again on February 19, 2008 in a lawful traffic stop. The appellant was driving, and his friend Campbell was also in the vehicle. The police officer, Brabant, saw a red shotgun shell in plain view on the back seat. Both occupants of the vehicle were arrested for careless storage of ammunition. Three more shotgun shells were found in the trunk.

[28] The appellant was cautioned. He asked to speak to his lawyer. Before he could exercise his right to speak to counsel, Brabant approached him, holding the shotgun shells in his hand and asked: "Where did these come from?" The appellant said that he had found them and intended to use them to make firecrackers.

[29] While in the back of the police car on the way to the police station, the appellant asked Brabant if his friend had been arrested. When advised that Campbell had also been charged with careless storage of ammunition, the appellant blurted out that the ammunition was his. In reasons reported at 2011 ONSC 1912, the trial judge found the statement was made spontaneously without prompting by Brabant, who was driving at the time.

[30] On appeal, the appellant argues that the statement in the back of the police car was tainted by the violation of the appellant's Charter rights caused by the question posed by Brabant before he could consult counsel. The trial judge was aware of the earlier Charter violation and had excluded the appellant's response to the question.

[31] The trial judge did not explicitly deal with the contextual, temporal and causal relationship between the two statements. However, given his factual findings that the appellant's statement that the shotgun shells were his own was made spontaneously, out of concern for his friend, and that the statement was not prompted by any investigative step on the part of police, I am satisfied that the connection between the Charter breach and the statement made from the back seat of the police car was tenuous and remote: see R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21. The evidence of the appellant's utterance was not "obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter" within the meaning of s. 24(2).

F. Bad Character Evidence

[32] The appellant submits that the trial judge should have excluded the following evidence, referred to at trial as bad character evidence, on the ground that its probative value was outweighed by its prejudicial effect:

1. The testimony of two witnesses, who were both friends of the appellant. It was their evidence that in December 2007 the appellant had a shotgun and showed it to both of them, on separate occasions.

2. Evidence that shotgun shells were located inside the appellant's vehicle on January 15, 2008 and February 19, 2008.

3. The testimony of a witness that he spent January 14, 2008 with the appellant and Campbell scoping out drug dealers' residences for the purpose of robbing them. (This evidence admitted only in the trial related to the killing of Warne: 2011 ONSC 2571).

[33] When considering the admissibility of bad character evidence, the trial judge's weighing of probative value and risk of prejudicial effect is owed deference. As Strathy C.J.O. indicated in R. v. Bent, 2016 ONCA 651, 342 C.C.C. (3d) 343, at para. 48:

Absent an error in principle, substantial deference should be given to the trial judge's balancing of probative value versus prejudicial effect. This deference recognizes that the trial judge is best equipped to assess the impact of the evidence on the jury, in the context of the issues and evidence at trial. [Citations omitted.]

[34] I agree with the trial judge's conclusions that the evidence at issue here was admissible. The appellant's possession of a shotgun and shells close in time to the two homicides under investigation was relevant to the identity of the killers and to the assessment of the appellant's testimony that A. killed Ottley and that someone else shot Warne. A shotgun was the weapon most likely used in the killings. The appellant's lurking around Warne's house with a view to ripping off a drug dealer was likewise an integral part of the circumstances leading up to Warne's death and suggested a motive for the killing. The witness's testimony on this point was corroborated by the appellant's own statement to the police during the April 15, 2008 polygraph interview that he was at Warne's home the night Warne was killed with an intent to rob him.

[35] Prejudice in the context of bad character evidence means the risk that a jury would misuse the evidence, not the risk that the evidence would be inculpatory: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 139. The appellant's possession of a shotgun or shotgun ammunition is not evidence of such a degree of bad character as to lead a jury into moral or reasoning prejudice, particularly in the context of the other evidence led in this case.

G. Conclusions

[36] For these reasons, the appeals are dismissed.

Released: "DW" "MAY 16 2017"

"G. Pardu J.A."

"I agree. David Watt J.A."

"I agree. K. van Rensburg"