Court File and Parties

Ontario Court of Justice

Date: November 3, 2017

Court File No.: Brampton 15-4966

Between:

Her Majesty the Queen

— and —

Richard Owen

Before: Justice M.M. Rahman

Counsel:

• Maria Stevens, counsel for the Crown
• Richard Owen, applicant on his own behalf

Reasons for Judgment on Admissibility of Statements

Released on November 3, 2017

I. Overview

[1] Peel Regional Police officers executed a search warrant on the applicant, Richard Owen's home shortly after 7:00 a.m. on April 22, 2015. They were met at the door by the applicant's father, Neal Owen. Not long after they entered, the applicant was escorted downstairs to the living room by a uniformed officer.

[2] After the applicant had been sitting in the living room with his father for several minutes, an officer asked the applicant to come into the kitchen so he could speak with him. The applicant gave incriminating answers to the officer's questions (the first statement). Those answers provided the grounds for the applicant's arrest. The applicant was then taken to the police station where, less than three hours after his arrest, he provided a video-recorded statement (the second statement).

[3] The Crown applied to have the applicant's statements admitted as having been given voluntarily. The applicant applied to exclude the statements under s. 24(2) of the Charter because his rights under ss. 9, 10(a) and (b) were violated. A single voir dire was held to determine the two statements' admissibility based on the common law and the Charter.

[4] During the trial, I told the parties my conclusion that the statements were admissible under the common law, but inadmissible under the Charter. These are my reasons for those conclusions.

II. Summary of the Evidence

A. Police Enter the Applicant's Home

[5] Peel Regional Police arrived at the applicant's home just after 7:00 a.m., on April 22, 2015. At 7:05 a.m., they knocked on the door, which was answered by the applicant's father. Cst. Jenkins told the applicant's father that they had a search warrant for the house and asked if he could move into the living room area of the house. The applicant's father seemed surprised and did not know why the police were there. Cst. Jenkins asked the applicant's father who else was in the house and he told the officer just his son, Richard. Cst. Jenkins explained that the police were there to execute a search warrant regarding child pornography based on the use of a system called Freenet.

[6] While Cst. Jenkins was speaking with the applicant's father, other officers were "clearing" the house. The applicant was upstairs in his bedroom when police entered the home. The applicant testified that he had gone to sleep at about 5:00 or 5:30 a.m. that morning. He recalled hearing his father call his name, asking him to come downstairs. As the applicant opened the door to his room, he encountered Cst. Radon, one of two uniformed officers assisting in the execution of the warrant. Cst Radon escorted the applicant downstairs and told him to take a seat in the living room.

[7] As the applicant walked down the stairs, he overheard a few words of a conversation between his father and Cst. Jenkins. The applicant heard his father say "it's probably me." The applicant testified that he did not hear any other conversation between his father and Cst. Jenkins. Cst. Jenkins believed, but could not be sure, that the applicant would have heard the "tail end" of the conversation between himself (Jenkins) and the applicant's father about the execution of the search warrant.

[8] Shortly after the applicant was seated in the living room, his father joined him there. The applicant recalled Cst. Lord, the second uniformed officer on scene, walking back and forth in the living room. The applicant said he could recall this because he remembered his laptop bag being in the living room and asking Cst. Lord to be careful not to step on it. The applicant and his father remained seated in the living room for several minutes until the applicant was called by Cst. Jenkins to go with him into the kitchen.

B. The Applicant is Called into the Kitchen

[9] Cst. Jenkins called the applicant into the kitchen at about 7:19 a.m. Cst. Jenkins summoned the applicant into the kitchen by saying words to the effect of "Richard can you please come in here." There were at least two other police officers in the kitchen at the time. Both Cst. Radon and Cst. Lord testified that they were with Cst. Jenkins when he arrested the applicant at 7:19 a.m. The exchange that followed between Cst. Jenkins and the applicant is a point of dispute in this application.

1. Cst. Jenkins' Version

[10] Cst. Jenkins testified that, once he and the applicant were in the kitchen, he cautioned the applicant that he was not required to say anything, and that the police were there conducting an internet-based investigation into child pornography. Cst. Jenkins testified that he then asked the applicant what he described as "cursory questions." He said that he had the following exchange with the applicant:

Jenkins: Do you know why we are here?

Applicant: Yes and I am not proud of it.

Jenkins: Are you aware of what freenet is?

Applicant: Yes.

Jenkins: Do you utilize or operate freenet?

Applicant: Yes I am not proud of what I have done.

[11] After this exchange, Cst. Jenkins testified that he had reasonable grounds to arrest the applicant for accessing and possessing child pornography. He arrested the applicant at 7:19 a.m. He informed the applicant of his right to counsel at 7:21 a.m. The applicant said that he understood his rights and expressed an interest in calling a lawyer. Cst. Jenkins asked the applicant if he had a specific lawyer and the applicant said he did not. Cst. Jenkins then read the applicant the primary and secondary cautions. While Cst. Jenkins was reading the applicant the caution, he was under the impression that the applicant wanted to speak with him. Cst. Jenkins told the applicant that he would prefer if the applicant spoke to a lawyer first.

[12] In answer to a question by the court, Cst. Jenkins said that the applicant would have been free to go at any time before he answered the officer's questions. The answers to those questions were Cst. Jenkins' reasonable grounds to arrest the applicant.

2. Applicant's Version

[13] The applicant testified that when Cst. Jenkins called him into the kitchen, he did not feel that he had any choice but to go to the kitchen and speak to the officer. The applicant testified that Cst. Jenkins did not caution him. The applicant also said that Cst. Jenkins did not say why the police were in the house. The applicant testified that Cst. Jenkins asked him four questions. He said that they had the following exchange:

Jenkins: Do you know why we're here?

Applicant: Yes and I'm not proud of it.

Jenkins: Is there any reason to believe your father is responsible for illegal activity?

Applicant: No don't drag them into this.

Jenkins: Do you know what freenet is?

Applicant: Yes.

Jenkins: Are you using freenet to download illegal material?

Applicant: Yes.

[14] The applicant testified that Cst. Jenkins then asked him if there was anywhere in particular the police should direct their search. The applicant responded, "on my computer in the basement."

[15] The applicant believed he was asked to take a seat in the living room again. After a few minutes, Cst. Jenkins called him back again and arrested him. Cst. Jenkins informed the applicant of his right to counsel, and the applicant told the officer that he wanted to speak to a lawyer.

[16] The applicant asked to be able to get dressed and was escorted upstairs to his bedroom to do so by Cst. Lord and Cst. Radon. On the way downstairs from his room, the applicant said that he asked Cst. Jenkins if he wanted to be shown where to start the search. Cst. Jenkins responded, "no we have a pretty good idea where to start."

C. The Applicant is Taken to 11 Division

[17] Cst. Lord and Cst. Radon escorted the applicant out of the house and placed him into the back seat of their police cruiser. Once the applicant was placed into the cruiser, Cst. Radon read him the primary and secondary cautions. They then left for 11 Division at 7:29 a.m., arriving there at 7:46 a.m. Neither Cst. Lord nor Cst. Radon had any conversation with the applicant during the drive.

[18] Once they arrived at 11 Division, the applicant was lodged in the cells. At 7:52 a.m., Cst. Radon placed a call to duty counsel on the applicant's behalf. Cst. Radon explained that he called duty counsel because Cst. Jenkins instructed him to and because the applicant had made no mention of having a lawyer of his own.

[19] At 8:04 a.m., duty counsel called and the applicant was given an opportunity to speak in private with duty counsel. He spoke to duty counsel until 8:13 a.m., after which he was lodged back in the holding cells. The applicant testified that he was feeling cold in the holding cells so he asked an officer who walked by if he could get a pair of shoes. The officer acknowledged his request but never returned. The applicant remained in the holding cell until shortly before he was taken for a video-recorded interview by Cst. Jenkins.

D. Cst. Jenkins Interviews the Applicant

[20] Cst. Jenkins started interviewing the applicant at 10:00 a.m. The video recording and a transcript of the interview were filed as exhibits on the voir dire.

[21] At the outset of the recording, Cst. Jenkins confirms with the applicant that he has had an opportunity to speak with counsel. The applicant then begins to ask if he can possibly speak with duty counsel again. Cst. Jenkins offers to contact duty counsel again. The applicant then asks if it is possible to have duty counsel there in person. Cst. Jenkins responded "Not duty counsel." Cst. Jenkins then explains the way the call to duty counsel works and how the number is simply routed to a lawyer who has offered his or her services as duty counsel. The applicant then responded "Yeah, okay, then it's fine." Cst. Jenkins asks the applicant if he is sure, and the applicant responds "Yeah. Yeah he just told me, basically, the only thing I expect him to tell me anyways." Cst. Jenkins then said "I just wanna make sure you were satisfied with what the advice they gave you." The applicant replied "It was pretty textbook advice, I'm sure."

[22] During the interview, Cst. Jenkins referred to the conversation he and the applicant had at the house.

Jenkins: Um, yeah, w-, we spoke briefly today, your-, at your house. Um, I appreciate you being honest with me.

Owen: Mm-hmm.

Jenkins: Okay.

Owen: It's gonna be a lot to get off my chest.

Jenkins: Well, y-, you know what…

Owen: Yeah.

Jenkins: … like I said to you at the house, we're not-, it's not our job to, to judge…

Owen: Mm-hmm.

[emphasis added]

[23] Cst. Jenkins interviewed the applicant until shortly before 11:00 a.m.

III. Voluntariness

[24] The Crown must prove, beyond a reasonable doubt, that any statements the applicant made to the police were voluntary.

[25] I am satisfied beyond a reasonable doubt that both of the applicant's statements to police were voluntary.

[26] I am satisfied that the applicant spoke with Cst. Jenkins freely and voluntarily both during the questioning in the kitchen and during the video-recorded interview at the police station. I accept Cst. Jenkins' evidence that he cautioned the applicant before he questioned him in the kitchen as part of his normal practice.

[27] There is no suggestion that the police at any time made any threats or promises to the applicant. Moreover, there is no question that the applicant had an operating mind. He did not appear incoherent or even tired during the interview. The applicant did not suggest in his own evidence that he did not voluntarily speak to the police. That he did so without legal advice does not mean the statement was involuntary.

IV. Were the Applicant's Charter Rights Breached?

[28] The applicant has the onus on his Charter application to demonstrate that his Charter rights were breached. The applicant's Charter argument turns, in large part, on whether he was detained when the police placed him in the living room or before Cst. Jenkins began questioning him.

[29] If the applicant was detained, he was entitled to be informed of the reason for his detention and of his right to retain and instruct counsel without delay. There is no question that the applicant was not informed of his right to retain and instruct counsel until after he had answered Cst. Jenkins' questions.

A. Section 9: Was the Applicant Detained?

[30] The applicant argued that he was subjected to a psychological detention. He said that the manner in which he was escorted from his room and "sequestered" in the living room with his father by the police would have made a reasonable person believe that he was not free to go. The applicant also added to this the direction by Cst. Jenkins to speak with him in the kitchen as an additional factor showing that he was detained.

[31] A psychological detention will occur where a person believes that based on the police's conduct, he or she is not free to leave. The inquiry is objective and focuses on the police's conduct, and how that conduct would be perceived by a reasonable person. The question is whether, having regarded to all the circumstances, a reasonable person would conclude that he or she was not free to go and had to comply with the police's direction. As the Supreme Court explained in R. v. Grant:

The question is whether the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand. As held in Therens, this must be determined objectively, having regard to all the circumstances of the particular situation, including the conduct of the police. As discussed in more detail below and summarized at para. 44, the focus must be on the state conduct in the context of the surrounding legal and factual situation, and how that conduct would be perceived by a reasonable person in the situation as it develops.

The notion of psychological detention recognizes the reality that police tactics, even in the absence of exercising actual physical restraint, may be coercive enough to effectively remove the individual's choice to walk away from the police. This creates the risk that the person may reasonably feel compelled to incriminate himself or herself. Where that is the case, the police are no longer entitled simply to expect cooperation from an individual.

[32] I agree with the applicant that he was subject to a psychological detention from the time the police escorted him downstairs and had him to sit in the living room. To be sure, the police are entitled to conduct a protective search of a home during which they may ask the occupants to congregate in a particular area. The police are entitled to direct occupants of the home in this manner as part of their ancillary powers. Without the ability to exercise some control over the occupants of a home in this manner, the police would be unable to ensure their own safety. Consequently, the police may "clear" a house to ensure that they have accounted for all of the occupants and can conduct a search safely.

[33] However, once the police have "cleared" the house and ensured that they have accounted for all the occupants, they must have a basis for any continued detention of any occupant(s). They are not permitted to simply keep the occupants in a room, incommunicado, while they go about their search of the house. Once police have ensured their safety, they are not justified in holding the occupants in a room unless the occupants are being arrested or otherwise be lawfully detained. Provided the occupants are not interfering with the search, they are permitted to stay in and move about the residence; or, they may leave.

[34] In this case, I accept Cst. Jenkins' evidence that he did not have grounds to detain the applicant before questioning him and that, in his mind, the applicant was free to go. However, it was unreasonable of Cst. Jenkins to think that a reasonable person would not consider him or herself detained in the circumstances.

[35] Seven police officers had just made an early morning entry into a home. The applicant had just been woken up and escorted by a uniformed police officer from his bedroom into his living room. He was not told anything by the police about whether he was being arrested, detained, or was free to go. The police officers had effectively taken control of the home and were walking around preparing to do a search of it. Any reasonable person in these circumstances would conclude that he or she was detained. I also accept the applicant's subjective belief that he did not think he was free to go.

[36] Even if the applicant was not detained when he was in the living room, he was detained once he was summoned to the kitchen by Cst. Jenkins. When Cst. Jenkins told the applicant to join him in the kitchen, it was reasonable in the circumstances for the applicant to conclude that he had to go. As such, the very latest that the applicant was detained was from the moment Cst. Jenkins summoned him into the kitchen.

[37] Because the police had no grounds to arrest or detain the applicant prior to questioning him, and after they had cleared the house, his detention was unlawful and a violation of s. 9 of the Charter.

B. Section 10(a)

[38] Section 10(a) requires the police to inform a person immediately upon arrest or detention of the reasons therefor.

[39] Cst. Jenkins believed that the applicant knew the reason the police were in his home early on. Cst. Jenkins believed that the applicant would have overheard the conversation the officer had with the applicant's father explaining why they were there. The applicant testified that he did not overhear the conversation and believed that all he overheard his father say were the words "it was probably me."

[40] On this point, I accept the applicant's evidence that he did not overhear the conversation. Cst. Jenkins simply believed that the applicant overheard the conversation between the officer and the applicant's father. Although the applicant had just woken up, I prefer his recollection to Cst. Jenkins' less than certain belief that the applicant overheard part of a conversation. In any event, Cst. Jenkins, or some other officer, should have communicated directly to the applicant why he was being detained, rather than relying on having him possibly having overheard a conversation.

[41] I also accept the applicant's evidence that Cst. Jenkins did not tell the applicant why he was being detained prior to questioning him in the kitchen. Cst. Jenkins evidence that he explained the nature of the investigation before questioning the applicant in the kitchen is difficult to reconcile with the first question that he asked the applicant. It would make little sense that he would explain to the applicant why they were in the house and then immediately ask the applicant "do you know why we're here?"

[42] Section 10(a) places a positive obligation on the police to inform a detainee of the reason for his or her arrested or detention. It is a simple obligation to fulfil. It was not fulfilled here. There were no reasons of officer safety that may have justified any delay in complying with s. 10(a). The applicant ought to have been informed of the reasons for his detention when he was being taken to the living room. The applicant's right to be informed of the reason for his arrest was breached.

C. Section 10(b)

[43] Like s. 10(a), s. 10(b) of the Charter requires that a detained or arrested person be informed of the right to retain and instruct counsel without delay. Without delay means immediately. Again, only reasons of officer safety will permit police to delay informing a detainee of his or her right to counsel. No such reasons existed here once the house was cleared.

[44] The applicant was detained from the time he was escorted from the bedroom and placed in the living room. The applicant was not informed of his right to counsel until after he was arrested. Even if his detention had been lawful, and there had been no breach of s. 9, there would have been a breach of s. 10(b).

[45] Further, as discussed above, even if the applicant was not detained when he was escorted to and placed in the living room, Cst. Jenkins' direction that the applicant accompany the officer into the kitchen made it a detention. Any person would reasonably believe in those circumstances that he or she was required to remain in the house and accompany the officer. The applicant testified that he, in fact, did believe that. As with s. 10(a), there was a breach of s. 10(b).

V. Section 24(2)

[46] There is no question that the first statement was obtained as a result of a breach of the Charter and it must be subject to the s. 24(2) analysis. The temporal connection between that statement and the breach is a strong one.

[47] However, Ms. Stevens argued that the second statement was not obtained in a manner that violated the Charter. She said that after the applicant was informed of and exercised his right to counsel, the link with the previous breach was severed. She argued that there was a "fresh start" and that the second statement is not subject to exclusion under s. 24(2).

A. Was the Second Statement Obtained in a Manner that Violated the Charter?

[48] In order to trigger the application of s. 24(2)'s exclusionary remedy, the applicant must establish that the evidence he seeks to exclude was obtained in a manner that violated the Charter. The nexus can be temporal, contextual, or causal, or a combination of the three. Both the Supreme Court and the Court of Appeal have held that courts must adopt a generous and purposive approach to s. 24(2)'s nexus requirement.

[49] Where the police have breached an accused's s. 10(b) Charter rights, consultation with counsel may act to sever a subsequent statement from the earlier breach. Consultation with counsel will not automatically cleanse the subsequent statement from the taint of the earlier breach. Whether a subsequent post-consultation statement is connected to the earlier breach is a fact-specific inquiry that will depend on the circumstances of the case.

[50] I cannot accept the Crown's submission that the applicant's consultation with counsel severed the link between the breaches and the second statement. In my view, there is a clear nexus between the s. 10(b) breach at the applicant's home and the video statement. There is a strong temporal, causal and contextual connection between the breach and the second statement. The police's subsequent compliance with s. 10(b), and the applicant's exercise of his right to counsel, does not constitute a fresh start.

[51] The temporal connection in this case is a strong one. Less than three hours elapsed between the s. 10 breaches at the applicant's home and the beginning of the second statement. The second statement was clearly part of the same investigative transaction and there is sufficient temporal proximity to trigger s. 24(2).

[52] Even if the temporal connection had not been strong, I find that there is a contextual and causal connection between the breach and the second statement. During the second statement, Cst. Jenkins referred back to conversations he had with the applicant at the house, before he had a chance to consult counsel.

[53] Further, the so-called fresh start in this case occurred almost immediately after the first statement had been taken. Cst. Jenkins elicited the incriminating statement from the applicant and then immediately arrested him and informed him of his right to counsel. There was no break between breach and compliance with s. 10(b).

[54] Finally, Cst. Jenkins was the same officer who had just elicited the incriminating first statement. In these circumstances, the secondary caution was virtually meaningless. Cst. Jenkins was the only officer the applicant had spoken with to that point. Cst. Radon's reading of the cautions also do not assist the Crown. Cst. Radon's reading of the secondary caution told the applicant that he should not let any prior statements he made (i.e. to Jenkins) influence him to make any statements to him (Cst. Radon).

[55] Had another officer read the applicant the secondary caution before interviewing him, and made no reference to what had taken place at the house, that might have constituted a fresh start. That is not what happened here. Therefore, I find that the second statement was obtained in a manner that infringed the Charter and I must consider its admissibility under s. 24(2).

B. Seriousness of the Breach

[56] The police did not act in bad faith in this case. However, I do think that the police were negligent in their approach to the applicant's, and his father's, rights.

[57] Cst. Jenkins oversaw the execution of the warrant. He did not believe that he had detained the applicant until after he arrested him. He believed until that point, the applicant was free to go. As I have explained above, while I accept that was Cst. Jenkins' subjective belief that he had not detained the applicant, I think it was unreasonable of the officer to believe that.

[58] When the police entered the home, they effectively took control of the premises. They moved occupants from one area to another. They started to prepare the home for a search. The police were clearly in a position where any reasonable person would see them as being in control of the occupants' movements. Indeed, they directed the applicant and his father where to go.

[59] If the police are going to exercise such control over a home's occupants, they should advise the home's occupants what their legal status is. Are they being detained because the police have reasonable grounds to suspect they're involved in criminal activity? Are they being detained because they might destroy evidence? Or are they free to go so long as they do not interfere with the search in any way? In my view, it is incumbent on police to communicate this information as soon as it is reasonably safe for them to do so, or they risk breaching the occupants' s. 9 or s. 10 rights.

[60] The breach of the applicant's s. 10(b) rights, although not egregious, was also not minor or technical. Cst. Jenkins saw fit to caution the applicant about his right not to answer any questions. He did not inform the applicant of his s. 10(b) rights because he did not believe he was detained. Again, I find that his belief was simply not reasonable. This is even more so because he summoned the applicant to join him in the kitchen before he started asking him questions.

[61] Although this is not the most serious breach, it is significant enough that I find that the first step of the Grant inquiry favours exclusion.

C. Impact on the Applicant's Charter-Protected Interests

[62] The breaches had a significant impact on the applicant's Charter-protected interests.

[63] The applicant was questioned, while under detention, without being told of his right to seek legal advice. Had the applicant promptly been advised of his right to counsel before speaking to Cst. Jenkins in the kitchen, he would have been able to make an informed choice whether to answer Cst. Jenkins questions. More importantly, the police would have been required to cease questioning until the applicant had exercised his right to counsel. While it is true that the applicant did ultimately give a statement to Cst. Jenkins after he had spoken to duty counsel, as explained above, that second statement was linked to the statements he made in the kitchen.

[64] The second step of the Grant inquiry favours exclusion.

D. Society's Interest in Adjudication on the Merits

[65] The third step of the Grant inquiry will rarely if ever spare evidence from exclusion where the first two branches favour exclusion. In any event where statements are concerned, the third branch of the Grant test will rarely favour admission.

[66] In all the circumstances, the admission of the applicant's statements would bring the administration of justice into disrepute.

VI. Conclusion

[67] The police breached the applicant's Charter rights during his detention and arrest. Admission of his statements would bring the administration of justice into disrepute. Consequently, the applicant's s. 24(2) application must succeed.

Released: November 3, 2017

Justice M.M. Rahman