Court File and Parties

Ontario Court of Justice

Date: April 9, 2018

Court File No.: Brampton 16-11008

Between:

Her Majesty the Queen

— and —

O'Neil Whyte

Before: Justice D. F. McLeod

Heard on: August 1, 2017 and January 4, 2018

Reasons for Judgment released on: April 9, 2018

Counsel:

Mr. P. Quilty — counsel for the Crown

Ms. M. Howatt — for the defendant O'Neil Whyte

Judgment

D. F. McLEOD J.:

Facts

[1] On Friday September 2, 2016 May-Ling Wong witnessed what she believed to be an assault taking place in and around her complex. Ms. Wong testified that she witnessed a male dragging a woman with some force between a fence and parked cars. At some point the incident seemed to calm down and the alleged victim was sitting outside alone. Eventually the witness saw the same male make contact with the alleged complainant at which point he could be seen throwing punches at the woman's face as well as throwing objects at her.

[2] Ms. Wong further describes a subsequent instance where she sees the perpetrator standing behind the complainant and forcefully dragging her backwards.

[3] Ms. Wong indicated that she was able to see what unit they were exiting from and stated that it was unit 41. Ms. Wong also makes mention that she has seen these individuals before and is of the belief that they have small children.

[4] Ms. Wong describes the woman as a darker female, approximately 23–24 years old. The male perpetrator was described as being approximately the same age, had no hair and brandished a lot of tattoos.

[5] As a result of what was witnessed by Ms. Wong she contacted 911 and reported the incident to the dispatcher. Ms. Wong also indicated that the female seemed fine and that there were no weapons observed or children present.

[6] Four officers attended as a result of receiving the initial call with respect to the disturbance. The officers made their way to the front of the unit door of the home the male and female were reported to be living.

[7] Officers Lemaire, Van Ryssel and Pembleton were the officers who gained entry and made their way into the home. For the purposes of this application it was the evidence of the officers that the premise behind entering the home was to prove the home "safe". Eventually the officers found the accused in an open area in the basement of the home.

[8] Upon knocking, the officers yelled "police" attempting to see if anyone was in the house. There was no response, however they could hear the shower running upstairs. The officers stayed where they were and eventually heard the water for the shower turn off. The officers eventually received a response from a woman who was making her way downstairs.

[9] Sergeant Lemaire was standing at the bottom of the stairs when the woman was coming down the stairs. He gave evidence that he observed a red mark over her eye and marks on her neck.

[10] The woman further advised that she was not in danger or fearful. The officers eventually took the woman upstairs to allow her to change out of her wet clothing. Officer Chardullo remained with her the entire time and also escorted her downstairs to be assessed when the paramedics arrived.

[11] The officers, although not given any permission to search any part of the home felt (according to their testimony) that it was appropriate under the circumstances to determine if anyone else was in the home. In light of this overarching concern the officers searched the basement and located a male, who was sweaty, agitated and did not have a shirt on. He was not hiding and was questioned, he also provided the officers with his identification.

[12] In their interaction with the male he advised them that he and his girlfriend had an argument and that at some point he attempted to drag her back into the home however, she fell while he was doing so. Once Mr. Whyte was arrested Sgt. Lemaire returned upstairs with the intention of facilitating witness statements.

[13] Upon his return upstairs Sgt. Lemaire was advised that the woman was not willing to cooperate with the investigation and was being belligerent. Sgt. Lemaire did however observe that the swelling above the woman's eye was getting bigger as well as the redness around her neck.

[14] When asked why the officers decided to enter the premises, Sgt. Lemaire advised the court of the following:

a) It was based on the information within the radio call;

b) That fact that the home appeared suspicious with all the lights off;

c) To ensure the safety of all who may be within the home.

[15] After speaking with the young woman the purpose for the search was articulated to the court as follows:

a) The woman the officers interacted with appeared to have been assaulted;

b) The officers were still uncertain if anyone else was present in the home;

c) The officers were also concerned about their own safety, in that an individual could still be lurking in the home;

d) There was still a suspect at large and his whereabouts were unknown.

The Law Regarding Exigent Circumstances and Section 8 of the Charter

[16] The circumstances surrounding the officers' entry into this home is premised in large part on the information articulated over the radio call. The officers in their testimony generally point to the fact that the home must be proven safe.

[17] The law regarding s. 8 suggests that any intrusion into a dwelling house would be considered a search for the purposes of s. 8 of the Charter and must be proved to have been reasonable by the Crown.

[18] What has emerged as a common theme with respect to "exigent circumstances" is that the situation cannot be merely for convenience, propitiousness or economy, but rather urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety or public safety. R. v. Paterson, 2017 SCC 15, at para 33.

[19] When looking at the evidence as it has been presented in this case it is clear to this Court that this was in fact an 'exigent circumstance' that could have provoked imminent danger or even harm to the woman who was being victimized at the time the call was made to 911. The 911 call indicated that a male was choking a female and dragging her back into a residence.

[20] This was clearly a domestic related scenario, which would escalate and then quickly de-escalate. Although when the call was made it appeared that things had calmed down it was equally as clear that the victim and victimizer had now made their way into closed confines away from witnesses and potential help.

[21] This Court is of the opinion that the warrantless search that followed the 911 call was reasonable and that the idea that the search was in an attempt to protect and preserve life was not only warranted but potentially could have allayed a scenario that may have escalated to very serious in a matter of minutes.

[22] Although the officers upon entry into the home did locate a woman who appeared to have some injuries to her person, this Court is not persuaded that at that point the home was proven safe. The radio call that the police acted upon indicated that the perpetrator was a male individual who dragged the complainant into a residence. There was no follow up information relayed to the officers to suggest that the male party had left the home.

[23] In order to satisfy the initial purpose for entry, that being to ensure that the alleged perpetrator is no longer present in the residence, it would be incumbent upon the officers to check all areas of the home to satisfy themselves that occupant safety would be ensured and maintained. Further, officer safety also becomes a concern once entry was successful.

[24] If the officers were required to cease their investigation after speaking to the woman until a warrant was authorized, would, in this Court's estimation, be unreasonable. This proposed course of action would be unreasonable because it would require an administrative step be introduced at a time in the sequence where the potential threat could still be lurking within the residence. This would impose undue judicial interference at a critical juncture, which would do more to compromise safety than protect life.

[25] The exigency relating to the 911 call was sufficient to warrant the actions of the police officers' entry into the home and the eventual search of the home. As such the s. 8 Charter application will be dismissed.

Did the Officers Delay Informing the Applicant of His Section 10(a) and (b) Rights?

Section 10 of the Canadian Charter of Rights and Freedoms provides:

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefore;

(b) to retain and instruct counsel without delay and to be informed of that right.

(i) Analysis – Section 10(a)

[26] The right to be promptly advised of the reason for one's detention embodied in s. 10(a) of the Charter is founded most fundamentally on the notion that one is not obliged to submit to an arrest if one does not know the reasons for it: R. v. Kelly (1985), 17 C.C.C. (3d) 419 (Ont. C.A.), at p. 424. R. v. Evans, para. 35.

[27] It is clear, therefore, that while the main purpose of s. 10(a) is to inform an individual of why he or she is being detained, it also has an important secondary aspect as an adjunct to the right to counsel conferred by s. 10(b). Specifically, the purpose of s. 10(a) is also to inform an individual of the extent of his or her jeopardy such that he or she can exercise the right to counsel conferred by s. 10(b) in a meaningful way. The purpose of s. 10(b), in turn, is to ensure that an individual subject to detention or arrest understands his or her right to silence and can make a meaningful choice about whether to exercise it: R. v. Hebert (1990), 57 C.C.C. (3d) 1 (S.C.C.). As to the difference in language between s. 10(a) and 10(b), I return to this court's holding in Kelly at p. 424.

[28] First, it may be noted that s. 10(a) uses the word "promptly" and s. 10(b) does not. While semantically there may appear to be little difference between "promptly" and "without delay" I think there is a subtle difference between them. The former is a positive term and, I think, does mean "immediately" while the latter does not quite have this connotation. The injunction of the latter is expressed in negative terms – not to delay or postpone, which does not necessarily convey the notion of immediacy. Further, if the same temporal requirement was intended to be equally applicable to each clause then it is reasonable to think that the same word or words would have been used in each: R. v. Nguyen, 2008 ONCA 49 at para. 20.

[29] The pertinent facts with respect to the 10(a) and (b) motion are largely based on the testimony of Sgt. Lemaire and PC Van Ryssel.

[30] Sgt. Lemaire makes his way to the basement and locates Mr. Whyte who appears to be agitated and does not have a shirt on at the time. Lemaire testifies that as soon as they see Mr. Whyte he begins talking about the argument that he had with his girlfriend. He further indicated that during the argument with his girlfriend he attempted to drag her back into the residence at which point she fell.

[31] PC Van Ryssel testified that it was her intention upon being told by Sgt. Lemaire that Mr. Whyte was in the basement and to arrest him, based on the information provided in the 911 radio call and the paramedics report. PC Van Ryssel indicated that when she arrived in the basement it was her understanding that Mr. Whyte was not aware of the reasons for his detention as well as his rights to counsel.

[32] Sgt. Lemaire further testified that upon encountering Mr. Whyte in the basement the officers did not make him aware of his reason for detention. The officer indicated that they did not have a discussion and suggested that the utterances were being made by Mr. Whyte without any prompting. Shortly after the utterances are made Sgt. Lemaire makes his way back upstairs.

[33] The officers upon entering the basement are aware that they are looking for a male individual, who allegedly was dragging and choking a young woman who was last seen entering a residence located within this particular complex. The officers are aware that the residence is #41, the officers have been able to enter the home and make observations of a young woman who appears to have physical injuries. The officers also come upon a young male who is now located in the basement of the home.

[34] This Court is left in a conundrum with respect to why the officers have to wait for another officer (PC Van Ryssel) who is upstairs to make her way downstairs to provide Mr. Whyte with his rights to counsel. Based on the testimony of Sgt. Lemaire they are aware of the following prior to getting to the basement:

a) The contents of the radio call;

b) That there is an outstanding male who was allegedly involved in the altercation;

c) That both parties were last seen entering the target residence of 2779 Gananoque Drive, unit 41;

d) Have observed the injuries to the face of the woman who was located in the residence;

e) Have located a male individual in the basement of the home, which is consistent with the information received via the radio call.

[35] S. 10(a) of the Charter provides that "[e]veryone has the right on arrest or detention to be informed promptly of the reasons therefore." At a minimum, individuals who are detained for investigative purposes must therefore be advised, in clear and simple language, of the reasons for the detention. In the case at bar, the officers, although aware of the reasons for the detention, do not advise Mr. Whyte of such instead they wait for another officer to attend in order to make the arrest. However, in the interim Mr. Whyte makes incriminating utterances.

[36] R. v. Nguyen goes on to state that once detained, an individual is at the mercy of state actors. Thus, in circumstances where the informational component of s. 10(a) of the Charter is easy to fulfill, the breach of the obligation to provide that information cannot be considered a trivial matter. We say this because, as the jurisprudence illustrates, the right against self-incrimination is fundamental to the spirit of s. 10 of the Charter. As was found in Nguyen, this court shares the conclusion that the informational component to advise Mr. Whyte of the circumstances was not only present but available had should have been accommodated in the case before this court. para. 21.

(ii) Analysis – Section 10(b)

[37] S. 10(b) of the Charter states that an individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy. In interpreting s. 10(a) in a purposive manner, regard must be had to the double rationale underlying the right – R. v. Evans para. 31.

[38] A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is affected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises. – R. v. Suberu, 2009 SCC 33, at para 41.

[39] According to the pertinent officers' notes several minutes elapsed between the detention and the time of arrest. Although the informational component must be provided without delay, in this particular circumstance there has been no reason posited for the 28 minute delay between detention and the time of arrest.

[40] In light of the unexplained delay and need to ensure that Mr. Whyte was able to instruct counsel without delay, (which was not done in this circumstance) this court finds that Mr. Whyte's 10(b) rights have also been infringed.

(iii) Should the Utterances be Excluded as per Section 24(2)

Section 24(2) of the Charter provides that:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Canadian Charter of Rights and Freedoms, s. 24(2)

[41] In R. v. Collins, supra, this Court enumerated what have come to be referred to as three sets of "factors" relevant to the determination as to whether evidence ought to be excluded pursuant to s. 24(2) of the Charter. These were methodically set out as follows in R. v. Jacoy, supra, at pp. 558-59:

First, the court must consider whether the admission of evidence will affect the fairness of the trial. If this inquiry is answered affirmatively, "the admission of evidence would tend to bring the administration of justice into disrepute and, subject to a consideration of other factors, the evidence generally should be excluded" [Collins, supra, at p. 284]. One of the factors relevant to this determination is the nature of the evidence; if the evidence is real evidence that existed irrespective of the Charter violation, its admission will rarely render the trial unfair.

The second set of factors concerns the seriousness of the violation. Relevant to this group is whether the violation was committed in good faith, whether it was inadvertent or of a merely technical nature, whether it was motivated by urgency or to prevent the loss of evidence, and whether the evidence could have been obtained without a Charter violation.

Finally, the court must look at factors relating to the effect of excluding the evidence. The administration of justice may be brought into disrepute by excluding evidence essential to substantiate the charge where the breach of the Charter was trivial. While this consideration is particularly important where the offence is serious, if the admission of the evidence would result in an unfair trial, the seriousness of the offence would not render the evidence admissible. – R. v. Grant para. 60.

1. The Seriousness of the Charter-Infringing State Conduct

[42] In R. v. Grant, the court held that "deliberate police conduct in violation of established Charter norms tends to support exclusion of the evidence" – R. v. Grant para 75.

[43] The officers failed to immediately inform Mr. Whyte of the reasons for his detention and of advising him of his rights to retain and instruct counsel.

2. The Impact of the Breach on the Charter-Protected Interests of the Accused

[44] The actions of the police, in this Court's estimation were not committed in good faith or merely technical in nature. Rather, the Charter breach as this Court has found caused the intercepting of utterances that would not have been obtained without a Charter violation.

3. Society's Interest in the Adjudication of the Case on Its Merits

[45] This was not a trivial breach in that to a certain extent senior officers were present in the home yet it still took several minutes for him to be given his rights to counsel and advised for the reasons for his arrest.

Conclusion

[46] This court finds that the admission of the utterances would result in an unfair trial as such the utterances to the officers by Mr. Whyte will be excluded.

Released: April 9, 2018

Signed: Justice D. F. McLeod