Court File and Parties

Court File No.: Guelph 1905/17 Date: 2018-05-04 Ontario Court of Justice

Between: Her Majesty the Queen — and — Charles Russell Clarke

Before: Justice G. F. Hearn

Heard on: March 21, 22, 26 and April 10, 2018

Reasons for Judgment released on: May 4, 2018

Counsel:

• N. Stortini, counsel for the Crown
• P. Valli, counsel for the accused Charles Russell Clarke

HEARN J.:

INTRODUCTION

[1] Mr. Clarke came before the court on March 21, 2018 and at that time entered pleas of not guilty to nine criminal counts all arising out of events said to have occurred on June 18, 2017 at the Township of Guelph-Eramosa. The charges are as follows:

1. Possession of a firearm knowing it to have been obtained by the commission in Canada of an offence contrary to section 96(2)(a) of the Criminal Code;

2. Possession of a laptop, of a value not exceeding five thousand dollars, knowing it was obtained by the commission in Canada of an offence punishable by indictment, contrary to section 355(b) of the Criminal Code;

3. Theft of the same laptop, contrary to section 334(b) of the Criminal Code;

4. Break and enter and theft of a firearm, contrary to section 98(1)(b) of the Criminal Code;

5. Break and enter a place, namely a shed, with intent to commit an indictable offence therein, contrary to section 348(1)(a) of the Criminal Code;

6. Possession of stolen property the value not exceeding five thousand dollars, namely a bicycle, contrary to section 355(b) of the Criminal Code;

7. Three counts of breach of recognizance, which recognizance is alleged to be dated April 13, 2017, with the breaches involving conditions relating to weapons, drugs and possession of a firearm.

[2] The Crown has elected to proceed by indictment on all counts.

[3] Prior to trial Mr. Clarke had served and filed a Notice of Application alleging breaches of various rights under the Charter of Rights and Freedoms and asking for orders excluding evidence said to be obtained as a result of those breaches. The evidence sought to be excluded includes utterances said to have been made by Mr. Clarke to persons in authority as well as various property seized from Mr. Clarke. The application sets out alleged breaches of Mr. Clarke's rights under sections 10(a) and 10(b) of the Charter.

[4] The Crown has filed a response generally denying such breaches, submitting further if such breaches are found to exist any evidence obtained thereafter should not be excluded upon a proper analysis under section 24(2) of the Charter.

[5] Prior to the calling of evidence and following the completion of evidence it became apparent that some of the relief sought by the applicant within the application became academic in light of admissions made by the Crown or as a result of the failure of the Crown to prove essential elements of certain charges involved within the Charter application.

[6] Specifically, at the conclusion of the evidence the Crown acknowledged, notwithstanding the Charter application, the Crown had failed to prove the existence and validity of the alleged recognizance and as a result findings of not guilty were registered with respect to counts 7, 8 and 13 on the information.

[7] Further, during the course of the trial a good deal of evidence was heard with respect to what the defence alleges was a strip search carried out in an unreasonable manner and not for a permissible purpose. The only relief sought by the accused with respect to that alleged Charter issue was the exclusion of evidence relating to what was alleged to be a controlled substance found before and during that search which resulted in a charge of breach of recognizance. As the Crown failed to prove beyond a reasonable doubt the essential elements of that charge, i.e. proof of the nature of the substance seized and the validity of the recognizance, the alleged breach concerning the Charter application became academic.

[8] Finally, Charter issues had been alleged with respect to the search of a cell phone said to be in the accused's possession at the time of his arrest and a subsequent statement taken by the police the day following his arrest. At the commencement of the trial the Crown acknowledged the alleged breaches with respect to those items and indicated that they were not relying on any evidence relating to the cell phone nor on any statement made by the accused the day following his arrest.

[9] As a result of the concessions made by the Crown, before and after the calling of evidence, there are still to be determined the remaining Charter issues and depending on the determination of those there are also trial issues.

[10] The Charter issues that remain involve the determination of:

1. Whether or not Mr. Clarke was subject to an investigative detention and, if so, whether the accused Charter rights under sections 10(a) and 10(b) have been breached.

2. Whether or not there has been a breach of Mr. Clarke's sections 10(a) and 10(b) Charter rights by the police having failed to advise Mr. Clarke of the reasons for his arrest and the charges which he faced in a timely manner and whether he was provided with his right to counsel as his jeopardy increased.

3. Whether or not Mr. Clarke's section 10(b) rights were breached by the alleged failure of the police to re-caution and again read right to counsel to Mr. Clarke following his arrest on a charge of possession of stolen property in relation to a laptop, which was ultimately seized and found within his knapsack.

4. If any such breach or breaches are found, what relief, if any, should be determined under section 24(2) of the Charter.

[11] The Crown has called a number of witnesses including police officers as well as four civilians to give evidence in what proceeded as a blended hearing on both the application and trial matters. The defence has elected to call no evidence on the application nor at trial. The trial commenced on March 21st, continued on March 22nd and 26th and finally on April 10th when submissions were received. The matter was then reserved to today for judgment.

Evidence of the Crown

Evidence of Katherine Jestin

[12] Mrs. Jestin is the mother of Sharon Beaton, the owner of the property known as 8538 County Rd. 124 in the Township of Guelph-Eramosa.

[13] In June 2017 she was entrusted by her daughter to keep an eye on the property while her daughter was away. The plan was for her to do so for about a week, commencing it would appear on or about June 15th. To her, that meant checking the property daily or every other day as she lived just a two-minute drive from her daughter's home.

[14] She testified that she had been to the property on June 17th at about 3:00 in the afternoon and thought everything was fine at the property, with "no disturbance anywhere". She described the property as a rural property on which there was a schoolhouse that had been renovated into a home. Also on the property is a large workshop/garage. She identified the garage/workshop in the photograph marked as Exhibit #3.

[15] When she had gone to check the property on June 17th, she did not go inside the garage, but just checked if everything was "locked up and looked secure". She then checked the house which she also found to be properly locked and closed. She testified she was also at the property on June 15th and again found everything to be in order, the way everything "was supposed to be".

[16] On June the 18th she attended the property at about 9:30 a.m. to return a recycling bucket. She stopped her car at the house and as she was about to unlock the door to the home she heard a voice. She noted that there was nobody living around the area as there are no neighbours and she looked around. She heard the voice a few times and saw a person in the driveway walking towards her car from the direction of the workshop/garage.

[17] She heard the voice and took a couple of steps towards the person. That individual, later identified by the police as Mr. Clarke, walked towards her. She described him as "rambling and saying, I need help. I've been locked in a garage and then he said he'd been locked in a barn. He did not know where he was. He did not know how he got there."

[18] She could not recall the exact order of the conversation, but the gist of it was that he did not know where he was, how he got there or what was happening and he kept repeating different phrases in different order, sometimes calling where he had been locked in a barn and at other times a garage.

[19] Ms. Jestin was concerned and had interaction with this male for about two or three minutes. He again kept saying "I need help". So she offered to go in the house to get some help. Mrs. Jestin's evidence is that Mr. Clarke stated he wanted the police at some point in his conversation. He "wanted the police and he needed help".

[20] As requested she said she would contact the police. She went into the residence and locked the door as she was concerned. She noted the male to be very disoriented and confused. She called her husband who was at home and asked him to come to the property, which he did. She also phoned the police. She remained on the phone while talking to the police. They asked her to describe the individual. She looked out the window and saw the individual pacing back and forth. The individual kept knocking on the door but she did not answer.

[21] When the police arrived they had contact with this individual. They also asked her questions with respect to certain clothing the individual was wearing and took her to the garage area where she noted it had been broken into. She also noted that the garage door was partially open but hard to fully open and one of the windows in the garage facing the highway had been broken.

[22] At the police request she contacted her daughter who had further conversation with the police and ultimately attended the property as well.

[23] During the course of Mrs. Jestin's evidence various photographs were filed including photographs of the garage and the broken window.

[24] She saw the police interacting with the male, but she does not appear to have had any further contact with him. In cross-examination she noted she had never seen the individual coming out of the "shed" and had not seen anything untoward with respect to the garage, although she had not walked behind it. She did state that on the 17th, the day before the incident, she had not noticed any broken window in the garage.

[25] Mrs. Jestin was also questioned with respect to a leather jacket which she ultimately was lead to believe from her daughter came from inside the garage and was found on Mr. Clarke at the time the police arrived. Of note, there was no admissible evidence received from Mrs. Jestin nor Ms. Beaton ultimately with respect to the jacket and specifically whether or not it had been previously in the workshop/garage.

Evidence of Sharon Beaton

[26] Ms. Beaton is the daughter of Mrs. Jestin and the owner of the property where the event took place. She had gone to her cabin the Thursday before for a short period of time and left the property and "shop", as she put it, in charge of her mother.

[27] She was shown Exhibit #3 and identified that as a photo of their shop and noted that when she left the property the preceding Thursday, vehicles had been parked in the shop and everything appeared to be "fine and normal". She stated she believed the shop was locked, the windows were all intact and the key for the truck that was located within the shop was to be found in the residence.

[28] She described the property and the broken window which faces the highway and which cannot be observed from the home. She was shown a picture of what appeared to be a gun and stated when the picture was shown to her that she "assumed" it was her gun. She noted the gun was operational and had been used for target shooting quite a bit. She noted that her husband, who unfortunately had passed away, was very "meticulous about the gun, kept it cleaned". The last time for sure that she knew the gun had been used was in the preceding fall. She was certain about that, but could not be certain about its use any time after that.

[29] She stated the gun was usually stored in the garage, in the corner of the shop. She had brought the gun from their cabin on Manitoulin Island on the long weekend in May. She acknowledged she was not familiar with guns but her husband would "have it ready and we would do our target shooting". She saw it in the cabin, brought it home and put it under the bench seat in her truck which was also located in the garage.

[30] Ms. Beaton also spoke of the other contents of the garage including two ATV's, two snowmobiles, a motorcycle and a variety of tools. She was shown a photograph of the truck inside the shed (Exhibit #6) and noted the damage to the back slider window which had been smashed and the ignition jammed. She also noted the battery was dead and the gas tank lid was off. She stated there were two gas cans in the garage/shop that had had gas in them and they were now empty.

[31] The ignition on one of the ATV's had been punched out with a screwdriver and she identified a picture of the truck and that ATV. She viewed all of this as shown in the various photographs when she came home. The cost to repair the ATV was about $225 and the cost to repair the damage to the truck was "a couple of thousand dollars".

[32] With respect to the gun, Ms. Beaton indicated the ammunition for the gun had been stored on the second story of the shop/garage in a locked cupboard. There were also two packages of ammunition on top of a tool bin in a corner of the shop.

[33] When asked about the locking mechanism in relation to the gun, Ms. Beaton stated the gun was stored in a gun case which was locked with a padlock. There were also clasps to lock on the case. The key to the padlock was in the house. She was uncertain where the keys to the clasps were. When she observed the interior of the garage on her return she noted that the case was open, sitting on top of one of the ATV's and it was empty. She was asked what kind of gun it was and indicated it was a ".22", brown and black in colour and she called it a "long gun".

[34] Upon examination of the other contents of the garage she also noted damage to some power tools which had been removed from their usual location and thrown into the back of the truck.

Evidence of Constable Sukhvinder Toor

[35] Constable Toor is a member of the Ontario Provincial Police and he was on duty the morning of June the 18th, 2017, working with Sgt. Dolderman another OPP officer. They were dispatched to the residence at 8538 Wellington Road 124 at about 9:45 in the morning on that date. The dispatch advised that the call related to a suspicious person at a house which was reported by an elderly female. It was also noted that it was unknown as to the reason why the male was there.

[36] He and Sgt. Dolderman arrived at about ten o'clock that morning. They saw a female and a male outside of the residence. Sgt. Dolderman proceeded to speak with the female, later identified as Mrs. Jestin and this officer spoke to the male who turned out to be Mr. Clarke.

[37] Upon arriving at the scene the officer stated he looked around making a mental note as to what he saw. He saw Mr. Clarke, he approached Mr. Clarke and started to speak to him. He noted that immediately in "our conversation" things were not making sense when Mr. Clarke was telling him where he was that night "et cetera". He noted Mr. Clarke to have a glossy look to his face, he was perspiring and appeared nervous. Mr. Clarke commented that he was thirsty.

[38] Constable Toor testified he queried Mr. Clarke as to why he was at that particular address. Mr. Clarke was not providing straight answers but instead was making strange comments referring to the fact that he had been "inside the shed and there were children outside not allowing him to come outside the shed". He stated "I couldn't make a phone call, I couldn't do anything. I thought kids were out there waiting for me."

[39] Constable Toor understood Mr. Clarke to mean when he referred to a shed, the large shed which was located on the property. He believed Mr. Clarke was referring to that shed which was about 50 feet away. Cst. Toor did not tell us why he thought that but he did say that was his assumption.

[40] Constable Toor also received identification from Mr. Clarke. He provided his date of birth and while doing this the officer made some observations and noted a leather jacket and bicycle in the front of the house. He asked Mr. Clarke why he was on the property. Mr. Clarke did not tell him why he was there but did give the officer his address in Guelph.

[41] The officer was not certain but he believes at some point Sgt Dolderman after talking to the female began to talk to Mr. Clarke and at that point Cst. Toor started looking around the shed. He could not recall exactly where Mr. Clarke was at the time he was doing that nor what he may have been doing.

[42] When he went to the shed he observed one of the windows on the shed to be broken. Outside the window he could see numerous drill bits and other garage like items from the shed that had been thrown out of the window. He was shown photographs of those items and those have been marked as an exhibit.

[43] The officer testified that he went inside the shed. He had some difficulty getting into the shed although it was not locked. He was unable to open the door freely as there were numerous items, tires and other "garage like items" piled against the inside of the door preventing the door from being fully opened. The officer however, was able to eventually get inside (see Exhibit #11).

[44] Upon entry into the shed the officer noted some scattered items and a broken window. He stated that upon his arrival at the scene when making visual observations he had seen various items on the grass to the one side of the shed but had not seen the broken window at that time.

[45] Again in the garage he noted disarray, the presence of vehicles and "clutter". He came back out of the shed and spoke with Sgt. Dolderman. He was not certain where that conversation took place but believed Mr. Clarke was in the area as there was "no reason why Mr. Clarke would be out of our sights. This is a suspicious person".

[46] The officers had arrived at about ten o'clock and the conversation with Sgt. Dolderman took place about ten minutes thereafter. They discussed what each had seen and the comments made by the female which included among other things having no idea why the male was on the property. At 10:15 a.m. the officer stated he had reasonable and probable grounds to believe that Mr. Clarke had broken into the shed.

[47] In response as to why he had believed that, the officer noted as follows:

"Again a suspicious person. The complainant could not advise us as to why this individual was there at the property. The fact that the accused was also saying that he was inside, was being evasive in his answers, not really answering the questions when I asked him why he was there, would not answer, provided an address in Guelph, that he lived in Guelph. This wasn't the normal break and enter that we usually, that the police go to. Usually the accused is not at the scene when we arrive at a break and enter scene, so everything was trying to be, we were trying to figure it all out at the time. It was confusing at the moment but slowly as we put the pieces together we developed, or I developed, reasonable grounds to believe that the accused had actually broken into the shed."

[48] As a result Mr. Clarke was arrested for break and enter and at 10:17 a.m. rights to counsel and a caution were read to Mr. Clarke. Mr. Clarke indicated that he understood and when asked if he wished to call a lawyer he indicated no, but he did "want to see a doctor". The officer asked why he wanted to see a doctor as he said it was his duty to do so. Mr. Clarke mentioned something about breathing but the officer did not note any breathing issues so, although he kept an eye on Mr. Clarke, he just "left the matter at that."

[49] Prior to placing the accused in the backseat of the cruiser the accused had a backpack he was carrying with him, so incidental to the arrest of Mr. Clarke it was searched. The backpack was searched for officer safety reasons. Inside the backpack was found a Blackberry, an iPod, a computer and some wires. Also, at some point during the course of the arrest, the accused stated "the judge will rule psychosis".

[50] In-chief the officer testified as follows:

"The search that actually takes place according to my notes again happens one for officer safety and that might have been to immediately check prior to the arrest. Then another search would have happened shortly after he was arrested."

[51] When asked how many times the backpack had been searched the officer indicated, "once". The officer was questioned by the Crown if he was able to say the backpack was searched prior to the arrest or after and stated:

"All right. So subsequent to the arrest I searched the accused and located items, Blackberry, iPod, loose change, along with the accused's backpack and numerous wires and a Lenovo computer, the black computer I was referring to."

[52] The officer then questioned the accused as to who owned the computer. The accused indicated the computer belonged to him. He was asked for his password so the officer could confirm it was his computer but the accused indicated he did not have to tell the officer the password and the officer made no further attempt to obtain it. However, when the computer was powered up, the name "Hart" showed on the screen.

[53] Constable Toor and Sgt. Dolderman together with Mr. Clarke remained at the scene while awaiting another officer and while doing so at 10:55 a.m. a male identifying himself as Mr. Hart showed up. He was questioning the theft of his computer and was led to the computer that had been located in Mr. Clarke's backpack. It was powered up and Mr. Hart was able to successfully enter his password, leading the officers to believe that the computer was in fact Mr. Hart's. As a result, at 10:55 a.m. the officer returned to his cruiser where Mr. Clarke had been seated and placed him under arrest for possession of stolen property.

[54] While at the scene as well the officer noted a jacket and a bicycle in close proximity to each other. Mr. Clarke was asked who owned the jacket and he indicated it was his. He was also asked who owned the bicycle and he again indicated it was his. When asked where he had bought it, Mr. Clarke did not respond. The police at some point were able to determine the name and owner of that particular bicycle.

[55] Constable Toor testified after Mr. Clarke had been arrested Sgt. Dolderman advised him there was a gun found inside the shed. The officer then observed the gun located on an ATV that was parked inside the shed (see Exhibits #12(a), 12(b), 12(c) and 12(d)). The officer identified the gun on the front handles of the ATV and also identified a rifle case with an elastic cord around it which had also been found on the front bumper portion of the ATV.

[56] The officer further observed an actual round in the firearm and that the case seemed to be for the gun, being approximately the same size.

[57] During this particular entry into the garage area the officer also noted damage to the rear window of the pickup truck and the screwdriver jammed into the ignition of the ATV.

[58] Another police officer arrived on scene and Mr. Clarke and Sgt. Dolderman left, travelling to the OPP detachment some 13 minutes away. They left at 11:37 a.m. and arrived at the detachment at 11:50. At 11:55 a.m. after arrival Mr. Clarke was read his rights to counsel again and indicated he now wished to speak to a lawyer while also stating he wished to see a doctor about "my vision, it's not right".

[59] At this point in the officer's evidence a video tape was played of the interaction at the detachment in the booking area with Mr. Clarke, Cst. Toor, and to some extent, Sgt. Dolderman and Cst. Romaniuk.

[60] The video is of the booking area at the Rockwood detachment of the Ontario Provincial Police where Mr. Clarke had been taken. The video shows the interaction between Mr. Clarke and Cst. Romaniuk and Cst. Toor during the course of the booking procedure. This involved among other things a search of Mr. Clarke, which according to Cst. Romaniuk's uncontested evidence did not initiate as a "strip search" but as a result of Mr. Clarke being observed dropping a package in the early stages of the search and trying to discard the item (which the officers reasonably believed was a controlled substance) turned into a more intrusive search. This search also turned up another item, again believed to be a controlled substance. The search initially was the subject matter of a Charter application. This evidence is ultimately of no relevance as it related to charges now otherwise dealt with and the defence does not rely on the Charter application relating to the search and has abandoned that alleged Charter breach during the course of submissions.

[61] During the playing of the evidence however, the officer did note that at the request of Mr. Clarke after reading rights to counsel again at the detachment a call was placed to the lawyer of choice and a message left. As I understand Cst. Toor's evidence no return call was received during the course of his dealings with Mr. Clarke. That call would have been placed by Cst. Toor sometime between 11:57 a.m. and 12:09 p.m.

[62] The investigation at some point had been handed over to Det. Oudshoorn. Cst. Toor however was questioned on, other than charges of possession of stolen property and break and enter, if he had ever considered laying a charge in relation to the firearm before speaking to Det. Oudshoorn. The officer testified that other officers were investigating to determine whether they would proceed, which ultimately they did, with charges relating to the breaking of the casing of the rifle, removing the rifle and loading it.

[63] In cross-examination, the officer confirmed that although he had not noted the broken window upon first entering the property on the driveway, he had noticed the items on the grass. With respect to his entry into the property and the presence of Mr. Clarke, he confirmed that the information that they had from dispatch indicated Mr. Clarke was a "suspicious person". It was put to the officer that after his initial contact and conversation with Mr. Clarke, he was not going to "let him out of your sight." The officer responded as follows:

"I'd say we would like to keep our eye, there are many people there. There was the homeowner there. There were other people arriving on scene after the fact so we were trying to keep, I mean he wasn't under arrest, you know, the peculiar thing was that the day of this call from my recollection, the owner was advised by the accused to call the OPP so we were going to a scene here that was throwing us a bit off in the sense that the accused is eventually charged with breaking and entering."

[64] The officer stated it was not the "usual" break and enter as the accused remained at the scene and in fact had requested a call to the police. It was put to the officer that he was not going to let a "suspicious male out of your sight" and he agreed and stated:

"That's right. I would say we wanted to keep everyone within our visual, just to know what's going on at least."

Further, he stated:

"He wasn't under arrest. If he would have left we would have had to, probably after ascertaining our information eventually, it would have been either resorting to detaining him or eventually if we put the pieces together we'd have to go get him and place him under arrest."

[65] With respect to the search of Mr. Clarke, he acknowledged that at some point prior to arresting him, he did conduct a search of Mr. Clarke. When asked about that, he stated:

"That's right. It was for officers' safety we just wanted to make sure that, you know, he is the suspicious person on private property, and trespassing so to speak. The complainant doesn't know him. He's perspiring. So all of those things raised our levels a little bit in the sense that, you know, officers' safety needs to be front and foremost right now so hence we checked the bag and we checked him real quick."

[66] When pressed on the issue of the search of the "bag", the officer stated that he could not recall if the backpack was actually searched at that point. It was possible the bag had been searched before the arrest but he simply could not recall.

[67] The officer confirmed that nothing during the search of Mr. Clarke at any point resulted in findings of drugs or weapons or drug paraphernalia.

[68] In cross, a good number of questions were asked with respect to the interaction with Mr. Clarke at the detachment, particularly as it relates to what was alleged to be an improper strip search. As noted previously, that issue became academic given counsel's position with respect to that alleged Charter breach.

[69] The officer in cross confirmed his evidence with respect to the discussions with Mr. Clarke concerning the bicycle. He also testified that when he ascertained the ownership of the laptop which had been found in Mr. Clarke's backpack, and then arrested Mr. Clarke on that particular charge, he also read him his rights to counsel. He was adamant that he had done so notwithstanding the apparent absence of a reference to right to counsel in his notes and further testified when asked that at no time did he advise Mr. Clarke he was "under investigative detention". Indeed, the questions relating to that particular area put to the officer in-chief and in cross would not indicate that the officer had ever testified that he even considered Mr. Clarke to be under "investigative detention".

Evidence of Sgt. Michael Dolderman

[70] Sergeant Dolderman, who has been a member of the Ontario Provincial Police since 1999, was teamed with Cst. Toor on June 18, 2017. They travelled together to the property of Ms. Beaton. Upon arrival, he noted Mrs. Jestin and Mr. Clarke.

[71] Mrs. Jestin was at the front door of the home while Mr. Clarke was observed sitting by a bicycle drinking a bottle of water. Mr. Clarke was wearing a baseball cap and the officer noted a leather jacket lying on top of the bike.

[72] Sergeant Dolderman had contact with Mrs. Jestin who conveyed to him the circumstances leading to her call to the police. He described the property including the "shop" located about 100 to 150 feet from the home. Mrs. Jestin led him to the shop and he noticed "things in the grass" on the south side of the shop.

[73] He entered the shop on his own, stating that there was no one else with him "at that time". He was able to enter with some difficulty as the door was "barricaded" with tires and chairs, all of which required him to "push pretty hard to get in." As he put it, the items had been "stacked up against the door to restrict or slow down entry".

[74] Sergeant Dolderman testified as to his observations within the shed of items which are noted in photographs filed. These include:

(1) Lots of tools thrown around;

(2) Lights on an ATV, which had a screwdriver jammed in the ignition;

(3) A gun box with a ".22" laying on top of it, on an equipment tray, which the officer indicated was a "long gun" pointed to the door that had been barricaded, with the gun being under a bungee cord. He confirmed the "weapon" was shown as in Exhibit #12(d) and testified he "proved it safe." In order to do that because of safety concerns, he moved the "gun", opened the chamber and found a "live round" which he removed together with five more rounds of ammunition. He did not remember the safety being on the gun;

(4) Open toolboxes and cabinet doors with glass on the floor and a "big window" smashed out; and,

(5) A truck with keys which appeared to be the wrong keys jammed in the ignition.

[75] Upon leaving the shop he spoke to Cst. Toor and advised him of his findings. When asked where Mr. Clarke was at that time, he was uncertain but noted he was "in the vicinity of Cst. Toor". This all took place shortly after 10:00 a.m.

[76] He then recalled he and Cst. Toor approached Mr. Clarke and Mr. Clarke was cautioned by Cst. Toor after he had made some comments to the officer at 10:11 a.m. This officer could not recall if Cst. Toor said anything to Mr. Clarke prior to the utterances being made, but noted they were to the effect "I was locked in building. Couldn't do anything. Kids were waiting for me. Then I blacked out…I don't remember anything. I have psychosis…no judge will convict someone with mental health issues".

[77] At 10:15 a.m., Cst. Toor arrested Mr. Clarke, handcuffed him to the rear and conducted a "cursory search". Sgt. Dolderman described that as a "quick check" for officer safety reasons. He also observed at the time Cst. Toor to search the backpack from which he pulled a laptop computer and "lots of cords".

[78] This witness gave detailed evidence then of the conversation between Mr. Clarke and Cst. Toor regarding the password and the powering up of the laptop at the entrance of the "shop door" by himself. Shortly after that a truck pulled into the area by the cruiser and a Robert Hart exited the truck.

[79] Mr. Hart relayed to the police concerns about the theft of his laptop and was quizzed by the officer as to its make. With a laptop powered up, Cst. Toor approached Mr. Clarke. Cst. Toor offered Mr. Clarke an opportunity to access the computer with his password but he said he could not remember it. Mr. Hart then typed in his password and the computer was activated. Mr. Clarke was then arrested for possession of stolen property.

[80] Sergeant Dolderman then contacted acting Sgt. Mackenzie, the Scenes of Crime officer, and Sgt. Dolderman tried to "get his bearings around everything about this gun…it's a big deal". He phoned Ms. Beaton and had a discussion with her. Acting Sgt. Mackenzie arrived on scene at 11:10 a.m. and was walked through the shop. This officer, Mr. Clarke and Cst. Toor then left for the detachment where they arrived and were met by Cst. Romaniuk at 11:52.

[81] Relevant to the issues to be determined, Sgt. Dolderman advised that at no time had he advised Ms. Clarke that he was under investigative detention and at no time did he hear Cst. Toor do so.

[82] As with Cst. Toor and Cst. Romaniuk, Sgt. Dolderman was led through the video from the booking area, but that evidence, together with the evidence of Cst. Romaniuk, which was heard next, relating to the alleged "strip search" became irrelevant as a result of the abandoning of the Charter issue relating to that search for a variety of reasons and need not be reviewed. This also applies to the evidence of Cst. Romaniuk, who the court heard from with respect to that particular issue.

Evidence of Constable N. Oudshoorn

[83] Detective Oudshoorn, also a member of the Ontario Provincial Police, attended the property shortly after noon on June 18, 2017. It was this officer that subsequently arrested Mr. Clarke on the offences related to the alleged firearm at 7:10 p.m. At that time, all charges were read to Mr. Clarke together with a further right to counsel and a caution.

[84] Of note, notwithstanding this officer appears to have been involved with the seizure of the alleged firearm, the court heard nothing about that from this officer, nor what, if anything, he did with the alleged firearm, after its seizure. The Crown had filed at the commencement of trial, a certificate confirming the nature of the gun that was seized, but that evidence is not admissible, as there was no determination that that particular gun, which was examined and found to be a firearm, was the same item found within the shed by Sgt. Dolderman. The absence of this evidence became an issue during the course of submissions on trial issues and will be referred to later.

Evidence of Acting Sergeant Mackenzie

[85] This witness, a member of the Ontario Provincial Police, was dispatched to the scene on June 18, 2017 at 10:30 a.m. He arrived at around 11:10 a.m.

[86] He viewed the scene and seized the weapon which he understood had been "proved safe" notwithstanding his will-say indicates there were no exhibits seized and the Scene of Crime Report does not refer to the weapon.

[87] It was this officer that seized the item, however, the officer never gave evidence as to what he did with it other than he examined the weapon and took pictures of it. During the course of the evidence of this officer, he referred to the weapon as a firearm, as did Det. Oudshoorn.

Evidence of Robert Hart

[88] Mr. Hart is a neighbour of Mrs. Jestin and lives in the Village of Everton, a short distance from the property of Ms. Beaton. Mr. Hart is the owner of the laptop that was located in the backpack and found during the course of the search of the backpack by Cst. Toor.

[89] Mr. Hart gave evidence with respect to what can reasonably be referred to as a suspicious person on his property during the early morning hours of June 18, 2017. Mr. Hart had video footage of that individual and the activities that individual apparently undertook while at his property. Those activities included taking cigarettes and a lighter from the porch area of his residence and as he later discovered, items from his vehicle which had been left on the property. He describes the individual in the video footage which he observed prior to attending at that Beaton residence on the morning of June 18 where he had contact with the police, as a male wearing a baseball cap with a logo on his shirt.

[90] Perhaps the most surprising thing about Mr. Hart's evidence is that he describes the video in some detail but the court never had an opportunity to view the video. Although Mr. Hart says he provided it to the police sometime shortly after the incident, the video was never produced nor referred to by any officer. In any event, once it became apparent that items had been removed from his truck including his laptop, which Mr. Hart indicated he would have been in a lot of "trouble if it hadn't been found" he also became aware the OPP were just down the road at Ms. Beaton's property. As a result, he got in his truck and went to the property of Ms. Beaton where he had contact with Cst. Toor and Sgt. Dolderman who still were on scene. He explained the situation to them, entered his password into the laptop which had been located and confirmed that the laptop was his. Mr. Hart also testified that when he arrived on scene, he noted a .22 calibre gun on the hood of the cruiser. He was present when Mr. Clarke was brought out of the cruiser and he was present when comments were made by Mr. Clarke that he "can't remember because he had psychosis" with respect to the password to be used to gain access to the computer.

Evidence of Robert Harvey

[91] Mr. Harvey is a neighbour of Mr. Hart, and on June 18, 2017 he had been up north when he got a call from one of his neighbours saying his garage door was open as well as a door to one of his vehicles which had been left at his home. He testified he thought everything had been secured prior to his leaving but when he returned to his property he discovered that sunglasses were missing as well as his bike. He gave a very detailed description of his bike, referring to it as a "K2" modified bicycle. The description certainly would indicate the bike was very unique and he described the bike in detail.

[92] At some point, he got a call from the police with respect to the bike and it was indicated to him that the bicycle was at the "lady's house where the garage had been broken into".

[93] He attended to the Beaton property and found his bike in the garage. He went in and got it. He was shown Exhibit #11 which is a picture of the garage and he indicated that was where he retrieved his bicycle from. He describes the bicycle as being worth about $5,000. He retrieved it about a week after the call and it was a "mess". It is unclear if he had the bike repaired.

[94] Of note, during the course of the witness' evidence, although he gave a detailed description of the bicycle that had been taken, he was shown neither the bicycle nor photos of the bicycle which had apparently been located with Mr. Clarke at the scene. Again, this became an issue with respect to trial matters.

[95] That concluded the evidence of the Crown. The defence elected to call no evidence either on the application or trial and submissions were heard and completed on April 10, 2018.

DETERMINATION OF REMAINING CHARTER ISSUES

[96] As indicated previously, some of the alleged Charter issues have been conceded or have become academic. The Charter issues that remain and require determination are:

(1) Was Mr. Clarke subjected to an investigative detention when the officers arrived on scene and if so, were his sections 10(a) and 10(b) Charter rights breached by Cst. Toor in failing to advise Mr. Clarke he was under investigative detention, the reasons for that detention and that Mr. Clarke had a right to consult with counsel.

(2) Were such rights of Mr. Clarke breached by the police allegedly failing to advise Mr. Clarke he was subject to an investigative detention while the officers reviewed their observations and findings within the "shed" at 10:11 a.m. prior to Mr. Clarke's arrest for break and enter by Cst. Toor at approximately 10:15 a.m. on June 18, 2017. (Note: during the course of this judgment, I have made references to the building noted and identified by a number of witnesses in exhibits as a "shed", "garage," and "shop". Such references are meant to refer to the building depicted in the exhibit filed and such terminology has been adopted with reference to the evidence of the various witnesses with a clear understanding that all such witnesses, whatever terminology may have been applied, refer to the same building).

(3) If such breach or breaches are so found, what relief, if any, is appropriate under section 24(2) of the Charter.

(4) Were Mr. Clarke's Charter rights under sections 10(a) and 10(b) breached by the failure of the police to advise Mr. Clarke of charges relating to "a firearm" until later in the evening of June 18, 2017 at approximately 7:10 p.m.

POSITION OF THE PARTIES

[97] The defence takes the position that Mr. Clarke was detained for investigative purposes as soon as the police arrived on scene at approximately 10 a.m. on June 18, 2017. The defence acknowledges that the evidence appears to be that neither Sgt. Dolderman nor Cst. Toor advised Mr. Clarke that he was subject to an investigative detention. However, defence takes the position that Mr. Clarke became subject to such a detention as soon as Cst. Toor searched him for safety reasons as set out in his evidence.

[98] Further, the defence argues that the evidence should also lead the court to find that in addition to initially searching Mr. Clarke, Cst. Toor also did a search of the backpack or knapsack. Defence submits that by conducting such search or searches, it was clear Mr. Clarke was detained for investigative purposes by Cst. Toor.

[99] As a result, Cst. Toor had an obligation to advise Mr. Clarke immediately of the reasons for his detention and his ability to contact counsel of choice. He did neither and the defence submits there has therefore been a breach of Mr. Toor's rights and evidence such as any findings of property in the backpack or any utterances made by Mr. Clarke prior to his arrest and after the arrival of the police should be excluded from evidence.

[100] The defence also argues that Mr. Clarke was subject to an investigative detention at the time the two officers were consulting with each other after their observations of the interior of the shed and he should have been advised at that point of his Charter rights and was not.

[101] Finally, defence argues that the police had sufficient evidence from shortly after the arrival at the scene to charge Mr. Clarke with a number of offences, yet the only offences Mr. Clarke was charged with initially at the scene were charges of break and enter and possession of stolen property. Defence argues that as a result of Mr. Clarke not being advised of additional charges until after 7 p.m. that evening, Mr. Clarke was not aware of his jeopardy and could not have exercised right to counsel in a meaningful way while in detention and defence argues there was an "increased vulnerability for self-incrimination".

[102] The Crown responds by indicating the defence has the onus to establish the breaches alleged and that onus has not been satisfied. The Crown submits that there is no evidence there in fact was an investigative detention and Mr. Clarke was never actually detained at the scene until he was arrested for the break and enter at about 10:15 a.m., some 15 minutes after the police arrival. The Crown submits that the police were investigating what they refer to as an a-typical investigation in all the circumstances. The investigation was unfolding and did not crystalize until Cst. Toor and Sgt. Dolderman had an opportunity to view the interior of the garage. Thereafter, within a very short period, Mr. Clarke was arrested on a count of break and enter on reasonable and probable grounds as set out in the evidence of the officers.

[103] The Crown argues that the evidence clearly establishes that once the arrest both for the break and enter and the possession of stolen property were made, Mr. Clarke was advised and then re-advised of his rights to counsel and cautioned.

[104] In the alternative, the Crown submits if the court finds there in fact was an investigative detention that upon a proper consideration of the three lines of inquiry under Regina v. Grant, there should be no exclusion of evidence.

[105] Defence has submitted that rights to counsel and caution were not re-read to Mr. Clarke following his arrest for possession of stolen property. The Crown submits that the evidence would indicate otherwise.

[106] With respect to the arrest for other offences later that evening, again the Crown submits that this was an unfolding investigation, the police acted appropriately and withheld charging Mr. Clarke with the additional offences until all facts were known from the investigation of Cst. Toor, Sgt. Dolderman and other officers during the course of the day on June 18. In addition, the Crown submits there is no evidence to warrant any finding of prejudice or an increase in jeopardy as there is no evidence before the court to indicate that such delay impacted on Mr. Clarke at all.

ANALYSIS OF LAW AND FACTS

[107] Section 10 of the Charter states as follows:

Everyone has the right on arrest or detention

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

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

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

[108] With regard to the onus of proof where an individual such as Mr. Clarke alleges that a right guaranteed by the Charter has been violated, the onus is on that party to prove the violation complained of on a balance of probabilities. As noted in Regina v. Collins, 1987 1 S.C.R. 265, the accused, in this case Mr. Clarke, bears the burden of persuading the court that his rights under the Charter have been infringed or denied. He bears the burden of presenting evidence. The standard of persuasion that is required is only the civil standard on the balance of probabilities and because of this the allocation of the burden of persuasion means only that in a case where the evidence does not establish whether or not the appellants' rights were infringed, the court must conclude that they were not. The burden of proof then in this particular matter lies with Mr. Clarke on the balance of probabilities which is the degree of proof required of civil actions. The standard of balance of probabilities has also been referred to as "a proof on a preponderance of probabilities" or "a proof on a preponderance of evidence". The onus is different than the onus resting on the Crown to prove the guilt of an accused beyond a reasonable doubt which has been acknowledged in numerous cases to be a higher standard.

[109] With respect to the degree of probability required to discharge the burden of proof on Mr. Clarke, the test to be applied has been articulated as a "reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say 'we think it more probable than not' then the burden is discharged but if the probabilities are equal it is not." See Miller v. Minister of Pension, (1947) 2 All E.R. 372 at 374.

[110] In Smith v. Smith, 2 S.C.R. 312, Justice Cartwright articulated the test as follows:

"That civil cases may be proved by a preponderance of evidence or that a finding in such cases may be made upon the basis of a preponderance of probability and I do not propose to attempt a more precise statement of the rule. I wish however to emphasize that in every civil action before the tribunal can safely find the affirmative of an issue of fact required to be proved it must be reasonably satisfied and whether or not it will be so satisfied must depend upon the totality of the circumstances on which his judgment is formed including the gravity of the consequences of the finding."

[111] Although the standard of proof is a civil standard, the accused does have the onus of establishing the breach on a balance on a balance of probabilities and that breach must be based on the evidence. There is a civil standard of proof in place lower than a reasonable doubt standard, but it still requires the evidence and cannot be based on speculation, supposition or assertion of counsel.

Was Mr. Clark Subject to an Investigative Detention?

[112] In dealing with this issue Mr. Clarke does not challenge the alleged detention of himself by Cst. Toor on the morning of June 18 as being an arbitrary detention contrary to section 9. The argument of Mr. Clarke simply put is that he was subjected to an investigative detention which was initiated as a result of Cst. Toor searching his person and/or the alleged search of his backpack upon Cst. Toor's arrival at the scene and prior to the officer entering into a further investigation which ultimately led to the arrest of Mr. Clarke at 10:15 a.m.

[113] The principles to be applied when considering this issue are gleaned from the seminal cases of Regina v. Mann 2004 SCC 52, [2004] S.C.J. No. 49, Regina v. Grant 2009 SCC 32, [2009] S.C.J. No. 32 and Regina v. Suberu 2009 SCC 33, [2009] S.C.J. No. 33.

[114] In dealing with whether or not Mr. Clarke was subjected to an investigative detention, as a starting point it is important to determine whether he was detained within the meaning of that phrase at all. In Regina v. Mann supra, at paragraph 19, the court indicated:

"The police cannot be said to 'detain' within the meaning of s. 9 and 10 of the Charter every suspect they stop for purposes of identification, or even interview. The person who was stopped will in all cases be 'detained' in the sense of 'delayed' or 'kept waiting'. But the constitutional rights recognized by s. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint."

[115] Further, in Regina v. Grant, the court made it clear that section 10 does not require that the police advise everyone at the outset of any encounter that they have no obligation to speak to the police and are entitled to legal counsel (see paragraph 19). At paragraph 38 in Grant, the court indicated:

"Detention under s. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply."

[116] Further in Grant at paragraph 44:

"In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the State of the liberty of choice the court may consider inter alia the following factors:

(a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or singling out the individual for focussed attention.

(b) The nature of the police conduct including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter; and

(c) The particular characteristics or circumstances of the individual were relevant including age, physical stature, minority status and level of sophistication."

[117] The case law clearly establishes that the police duty to inform an individual of his or her section 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention. The reason for that is to address concerns regarding compelled self-incrimination and the interference with liberty that section 10(b) seeks to address as being present as soon as a detention is affected.

[118] In Regina v. Suberu at paragraph 28, the court stated:

"In a situation where the police believe a crime has recently been committed, the police many engage in preliminary questioning of bystanders without giving rise to a detention under s. 9 and 10 of the Charter. Despite police request for information or assistance, a bystander is under no legal obligation to comply. This legal proposition must inform the perspective of the reasonable person and the circumstances of the person being questioned. The onus is on the applicant to show that in the circumstances he or she was effectively deprived of his or her liberty of choice. The test is an objective one and the failure of the applicant to testify as to his or her perceptions of the encounter is not fatal to the application. However, the applicant's contention that the police by their conduct affected a significant deprivation of his or her liberty must find support in the evidence."

[119] Further, at paragraph 5 in Regina v. Suberu:

"Even when an encounter clearly results in a detention, for example when the person is ultimately arrested and taken into police custody, it cannot simply be assumed that there was a detention from the beginning of the interaction. Given the immediacy of the s. 10(b) obligation to inform a detainee of his or her right to counsel, it is important to determine if and when an encounter between the police and the individual effectively crystalizes in a detention. It will be depend on the circumstances. It is for the trial judge, applying the proper legal principles to the particular facts of the case, to determine whether the line has been crossed."

[120] Looking at the evidence then, I make the following findings on the facts as I find them:

(1) Constable Toor and Sgt. Dolderman were dispatched to the scene after Mrs. Jestin had made a call to 911. Mr. Clarke had approached her at her daughter's residence in what can be best described as a bizarre fashion. He made various utterances to Mrs. Jestin and presented in a manner that concerned her. Among other statements made, Mr. Clarke indicated to Mrs. Jestin that he "wanted the police called". It is clear from both officers' evidence that they were aware of that, together with other information from dispatch when they attended at the residence.

(2) Upon arrival at the residence at 10 a.m. Sgt. Dolderman had interaction with Mrs. Jestin and Cst. Toor had contact with Mr. Clarke. Mr. Clarke presented during some initial conversation with Cst. Toor as "anxious, nervous, thirsty and as having no sense of where he was". During conversations with Cst. Toor, he was asked why he was at the address and the answers provided were "perplexing to the officer". Mr. Clarke provided a Guelph address and made statements to the effect that he had been in a "shed, there were children outside waiting for him and he couldn't do anything".

This conversation with Cst. Toor took place in the driveway about 50 feet from a shed which the officer believed Mr. Clarke was referring to. I find that a good portion of this conversation was unsolicited, unprompted and spontaneous on the part of Mr. Clarke.

(3) I accept both Cst. Toor and Sgt. Dolderman's evidence that what they were presented with was an unusual situation. They attended the property in response to a 911 call that the accused had effectively requested be made. They were met by Mr. Clarke who presented both verbally and physically as a concern and they did not know what they had.

They knew as well Mr. Clarke was effectively a trespasser but that was the extent of their knowledge. It was only after Cst. Toor and then Sgt. Dolderman attended the "shed/shop/barn/garage" that Cst. Toor formulated the grounds for the arrest for break and enter which occurred at 10:15 a.m., approximately 15 minutes after their arrival at the property. The officers, I find, proceeded with reasonable caution and reviewed their observations at 10:11 a.m. Four minutes later, on the basis of well-formulated reasonable and probable grounds, Cst. Toor arrested Mr. Clarke for break and enter and properly advised him of his rights to counsel and caution.

There is absolutely nothing in the evidence up to that point that would lead the court to conclude that either officer had said or done anything to restrain or restrict Mr. Clarke's movements. He had not been physically or verbally compelled to follow any direction of command issued by the officers. Indeed, the evidence is such that the officers did not know where he was from time to time except that he was in the area. It is telling that when Cst. Toor was asked by counsel what would have taken place if Mr. Clarke had left the area, the officer indicated they would have had to locate him and then detain or arrest him. That I find would have been a consequence of what the police were discovering and what was clearly an evolving investigation after they attended the shed.

(4) Mr. Clarke's main argument appears to be that once Cst. Toor searched him, he was subjected to an investigative detention and should have been righted. Mr. Clarke also takes the position that Cst. Toor searched his backpack at that time. All of this is said to have occurred prior to his arrest at 10:15 a.m.

I find as a fact that Cst. Toor considered Mr. Clarke, rightfully so, a "suspicious person" who he initially identified as a trespasser given his unexplained attendance at the property and his Guelph address together with information conveyed from dispatch. Both officers confirm that there was upon arrival at the property and after some initial conversation with Mr. Clarke, a concern for officer safety given the peculiar presentation and conversation between Mr. Clarke and Cst. Toor.

Constable Toor testified he conducted a cursory pat-down search of Mr. Clarke for officer safety reasons. Cst. Toor's evidence regarding the search of the backpack is unclear and his recollection uncertain, however, what he does say is that the backpack was searched on one occasion only. Sgt. Dolderman's evidence is very clear that the backpack was searched upon arrest of Mr. Clarke at 10:15 a.m. I find as a fact that that is what happened.

The search at that time accords with Sgt. Dolderman's evidence and also accords with Cst. Toor's evidence that the backpack was only searched on one occasion. Sgt. Dolderman's evidence also makes eminent sense. It was upon the search of the backpack that the computer was discovered together with other items and that is what prompted further investigation and the arrival of Mr. Hart. If the search had occurred earlier than his arrest, that discovery surely would have been an issue earlier on in the investigation.

I find then that there was a cursory search for officer safety issues and that no other search was conducted until following Mr. Clarke's arrest at 10:15 a.m. There is no other evidence concerning the "search" that was conducted to indicate it was prolonged, intrusive or improper in any way. I noted Cst. Toor had a basis, in my view, for conducting the search of Mr. Clarke when he believed him to be a trespasser and Mr. Clarke's presentation was such that it was at the very least concerning. This search itself, in my view, does not lead to a finding on an objective basis given all of the circumstances together with the fact that Mr. Clarke requested the police attend, that there was in fact a "detention".

The evidence falls well short of satisfying the onus on the applicant. The search such as it was, as I said, did not trigger an investigative detention. It was an "encounter" with the police at the request of Mr. Clarke, which did not result in a detention within the meaning of section 10 until Mr. Clarke's arrest at 10:15 a.m.

If I am wrong and there in fact was an investigative detention triggered by the cursory search of Mr. Clarke, I would, after a proper consideration of the three lines of inquiry set out in Grant, decline to exclude any evidence. In fact it is difficult to actually determine what evidence the defence wishes to exclude. If it is the contents of the backpack, I have made a finding of fact that the backpack was not even searched until following the arrest on the break and enter. Accepting that finding, there is evidence that Mr. Clarke seems to have made a number of unprompted and spontaneous statements to the police prior to the cursory search, which defence alleges initiated the investigative detention. On the overall evidence, I find that the conduct of the police was very reasonable in the circumstances. They jumped to no conclusions during this entire event until such time as they had properly investigated the circumstances. I agree with both officers' evidence that this was an evolving situation. The first line of inquiry in my view warrants the inclusion of evidence which I will assume refers to some of the comments made by Mr. Clarke which were prompted by the questions or conduct of Cst. Toor after the arrival at the scene and prior to the arrest at 10:15 a.m.

With respect to the second line of inquiry and the impact upon Mr. Clarke. In my view, the impact was minimal. Although there was a 15-minute period from the time of the arrival of the police to his actual arrest, it is clear in that timeframe Mr. Clarke was free to roam where he wished as both officers were conducting a view of the shed on the property. There is nothing to indicate he was restrained in any way or compelled to remain at the scene. He made no further utterances during the majority of that period of time, nor was he required to incriminate himself in any way. Indeed I find from the outset until his arrest, the officers' conduct was such that there was nothing that Mr. Clarke was compelled to do and any utterances made or conduct that he was undertaking were voluntary and self-induced. This line of inquiry favours the inclusion of any utterances made. It is also important to keep in mind when considering the impact on the accused that it was in fact Mr. Clarke who requested the police be called and attend the property.

The third line of inquiry would, I find, also favour the admission of the any utterances made by Mr. Clarke following the cursory search of his person for officer safety. The charges before the court are serious and the public has an interest in their adjudication on the merits concerning charges such as that before the court which allege, among other things, the presence of a firearm and an unwarranted entry into private property.

So, to be clear, even if I had found there was a breach of Mr. Clarke's Charter rights as a result of a failure by the police to treat the matter as an investigative detention, I would not have excluded any utterances the Crown may rely upon following such breach. I consider those breaches to be technical in the circumstances. Further, the submission that Mr. Clarke's section 10(b) rights were also breached as a result of what is alleged to be an "investigative detention" for the four minutes when the officers spoke at 10:11 a.m. until Cst. Toor actually charged Mr. Clarke at 10:15 a.m. is without merit. That period of time did not equate to an investigative detention at all and, if it did, the period of time was minimal with no consequences for Mr. Clarke who was simply in the area standing by while the officers spoke. As I say, if a breach occurred, which I find it did not, I would not have excluded any evidence as a result of that breach upon proper consideration of the principles set out in Grant.

Other Charter Arguments

[121] With respect to the applicant's arguments concerning the failure to re-advise Mr. Clarke of his rights to counsel or re-caution him upon the charging of possession of stolen property, the only evidence in that regard is the evidence of Cst. Toor. Clearly, that evidence indicates that he did read the rights to counsel again to Mr. Clarke at the scene after he had formulated reasonable grounds with respect to the possession of stolen property following Mr. Hart's attendance at the property. There is no evidence to the contrary and no basis to find a breach as alleged. With respect to the re-reading of the caution, that may not be as clear given the absence of evidence and the fact that word "caution" appears to have been crossed out in Cst. Toor's notebook without further explanation. However, I note that there had been a caution given with respect to the break and enter charge and further nothing was said by Mr. Clarke that the Crown has introduced into evidence following his arrest on the charge of possession of stolen property. I would not find on the evidence that I have a breach of Mr. Clarke's section 10(b) rights as a result of any failure to re-caution Mr. Clarke after what was effectively a second arrest.

[122] With respect to advising Mr. Clarke of all charges including charges relating to the firearm after 7 p.m. that evening, there is nothing before the court to indicate that the officers had even considered other charges at the time they left the scene. At that point, Mr. Clarke, had been arrested at 10:15 a.m., properly cautioned and then arrested again for a possession of stolen property after Mr. Hart attended at the property. There is no evidence to indicate that any delay in advising him of further charges had any impact upon him at all. There is nothing in the evidence that I have to indicate he took any steps to address matters before, as defence put it, his jeopardy increased at 7:10 p.m. when he was advised of the firearm related offences.

[123] Further, the police proceeded in this matter in a cautious and appropriate manner. They did not rush to lay a variety of charges initially. The investigation was ongoing and it involved a number of police officers. Cst. Toor and Sgt. Dolderman were involved at the scene and then at the detachment, but the investigation was then turned over to Det. Oudshoorn. There is nothing in the evidence of Det. Oudshoorn that would indicate any "delay" in advising of the firearm charges was as a result of bad faith, negligence or otherwise. This is simply a red herring in my view and no breach results.

[124] As an aside, even if there had been a breach, it is difficult to understand what evidence, if any, the defence seeks to exclude as once Mr. Clarke leaves the scene there is no evidence that has been introduced by the Crown that can be said to require Mr. Clarke be compelled or otherwise to provide information. In fact it is clear at the scene Mr. Clarke did not even wish to speak to counsel. That changed once he got to the detachment and efforts were made to contact his lawyer of choice. There is little to no evidence before the court as to what may have happened thereafter and specifically no evidence from the defence to indicate that Mr. Clarke's rights were compromised somewhat because he had consulted counsel between his arrest and the 7:10 p.m. and was not perhaps given an opportunity to consult thereafter. There is simply a complete absence of evidence with respect to this alleged breach.

[125] In summary then, for the reasons noted above, the Charter application is dismissed in its entirety.

TRIAL ISSUES

[126] The charges before the court are criminal charges and as with all criminal offences, the accused, in this case Mr. Clarke, is presumed to be innocent until the Crown proves his guilt beyond a reasonable doubt. The burden or onus of proving the guilt of Mr. Clarke rests with the Crown and it never shifts. Mr. Clarke does not have to prove his innocence and I am to presume that he is innocent throughout my deliberations. I can only find him guilty if, after I consider all of the evidence, I am satisfied the Crown has proved the case beyond a reasonable doubt.

[127] It is my duty as a judge to consider the evidence carefully and dispassionately without any trace of sympathy of prejudice for or against anyone involved in the proceeding. Then, after reflecting upon all of the evidence of each individual witness, I must weigh it and make a decision as to whether I accept the entire evidence given by that witness, a portion of that evidence, or none of the evidence given by that witness. After considering the whole of the evidence presented in the case, I must reach a conclusion as to the guilt of Mr. Clarke beyond a reasonable doubt or otherwise acquit him.

[128] There remains six counts on the information. I have had the opportunity to hear and consider all of the evidence of the various witnesses for the Crown, review the exhibits, and consider the submissions of counsel. Throughout my deliberations I have kept in mind that the onus is on the Crown to prove all essential elements of these charges beyond a reasonable doubt.

Counts 1, 4 and 5

[129] These counts relate to allegations concerning the break and enter into the shed (garage/shop) situated on the property of Ms. Beaton and the alleged possession and theft of a firearm by Mr. Clarke within that shed on June 18, 2017.

[130] The evidence relevant to these charges arises from a combination of circumstantial evidence as well as the direct evidence from Mr. Clarke in the form of various utterances he made to both Mrs. Jestin and the police (the latter utterances being admissible as voluntariness was acknowledged and the Charter application has been dismissed). After considering all such evidence, I am satisfied the Crown has proven these charges beyond a reasonable doubt and there will be findings of guilt on these three counts.

[131] I have come to that conclusion for the following reasons:

(1) I have made note and considered the absence of evidence with respect to these charges as stated by defence counsel. There is no forensic evidence placing Mr. Clarke within the shed. There is no direct evidence from witnesses that saw him enter or exit the shed. There was some indication in the evidence with respect to a jacket that was found with Mr. Clarke when the police arrived and where that jacket may have initially been located but that had not been proven by any admissible evidence. There was no property found on or under the control of Mr. Clarke in his backpack that has been identified as being originally in the shed.

Still, I am satisfied on the evidence I do have that it was Mr. Clarke that entered the shed and it was Mr. Clarke that caused the damages and left the shed in the condition as observed by both Cst. Toor and Sgt. Dolderman together with other officers.

(2) The subject property on all of the evidence is a rural type of property on which a schoolhouse/residence and a shed/garage/shop are located as described by Mrs. Jestin and Ms. Beaton. Photographs of the subject "shed" certainly indicate it is a larger type of building in which a number of items were located including ATV's, snowmobiles and a truck, together with a workshop. It could easily, in my view, be described as a result of that evidence as well as the pictures shown, as a "barn." Further, there are other residences in the area (Hart, Harvey and Jestin residence) but there are no immediate neighbours.

(3) The care of the property had been entrusted to Mrs. Jestin by her daughter commencing on June 15, 2017. She had attended at the property on her evidence on June 15 and 17 and then again on the morning of June 18. She had noted nothing amiss at the property and had been there as recently as the afternoon of June 17 without noting any "disturbance anywhere".

However on June 18th, when she attended at about 9:30 in the morning, she heard a voice and was approached by Mr. Clarke. He walked towards her coming from the shed area. He was noted to be rambling, repeating things and indicating to her, among other things, that he needed help, that he had been locked in a garage" and then stating that he had been locked in a barn. He did not know where he was or how he got there but he needed help and asked Mrs. Jestin to call the police. Pursuant to his request, she went in and contacted the police who arrived shortly thereafter at about 10:00 a.m. She, together with Sgt. Dolderman, went to the shed and noted the broken window.

(4) Sergeant Dolderman and Cst. Toor were dispatched and arrived at the scene at about 10:00 a.m. They had information with respect to the call that had been made to Mrs. Jestin to 911. They arrived at the scene and Sgt. Dolderman had a conversation with Mrs. Jestin while Cst. Toor approached Mr. Clarke. From the outset, the officer noted that the conversation was not making any sense. He made observations of Mr. Clarke that led him to believe that he was nervous and anxious. Cst. Toor seemed at a bit of a loss as to what was going on at the scene and asked Mr. Clarke why he was there. Mr. Clarke did not provide straight answers but made comments referring to the fact that he had been inside "the shed and there were children outside not allowing him to go outside the shed". He told Cst. Toor that he "couldn't make a phone call. I couldn't do anything. I thought kids were out there waiting for me". This conversation took place about 50 feet away from the "shed" and Cst. Toor believed that the "shed" Mr. Clarke was referring to was in fact the shed close by.

(5) Information was received from Mr. Clarke as to his identity. Observations were made of a bicycle and a leather jacket by Cst. Toor and Cst. Toor was able to determine that Mr. Clarke lived in Guelph. The officer then went to the shed where he made the observations he noted in evidence. Specifically, he noted that the door to the shed did not open freely and it appeared there had been a number of items including tires and other things propped up against the door from the inside to make entry difficult. He came back out of the shed and spoke with Sgt. Dolderman all within 10 minutes of their arrival at the scene and at 10:15 a.m., the officer believed he had reasonable grounds to arrest Mr. Clarke for break and enter, which he did.

(6) With respect to the evidence concerning the comments made by Mr. Clarke not only to Cst. Toor but also to Mrs. Jestin, the findings of the officers within the barn are consistent with Mr. Clarke's own utterances in that:

1. There was a shed/barn/garage on the property close to where Mr. Clarke was located.

2. Mr. Clarke was at the property at 9:30 in the morning seeking help from Mrs. Jestin and requesting that she phone the police.

3. He told her that he had been locked in a barn and presented in a state that caused Mrs. Jestin concern. He did not know where he was or how he got there and when Cst. Toor arrives, he presents with a glossy look and makes comments that are considered by the officer to be strange, referring to being inside a shed and children outside not allowing him to come outside the shed. Certainly a reasonable understanding of what Mr. Clarke was saying to Mrs. Jestin and the officer was that he was locked inside the very shed on the property and because of his fear about children outside had taken steps to barricade the door and consider himself, it would appear, to be "locked" in the shed. The finding of the weapon being pointed at the door, the disarray within the garage certainly indicating that someone, and I find that someone to be Mr. Clarke, had been there for some time going through the truck, removing the gun and placing it where it was found by Sgt. Dolderman, and attempting to start other vehicles including the ATV, which was noted to have a jammed ignition and lights on, as well as the truck. All of that indicates recent activity and I find that activity was initiated by Mr. Clarke.

4. Concerning the evidence of Sgt. Dolderman with respect to utterances made by Mr. Clarke after he and Cst. Toor had had an opportunity to speak to each other concerning their observations. The responses by Mr. Clarke were spontaneous and after he made the comments, Cst. Toor had cautioned him. The comments related again to him being locked in a building and that "kids were waiting for me, then I blacked out. I don't remember anything. I have psychosis, no judge will convict someone with mental health issues."

5. Although as noted, there is no direct evidence of anyone actually seeing Mr. Clarke going in and out of the barn/shed I am fully satisfied it was him. His statement to Mrs. Jestin and his utterances to Cst. Toor and Sgt. Dolderman confirm that he had been in a building and was concerned about people on the outside, which would reasonably lead him to attempt to barricade the door, which he did. The circumstantial evidence that is in place including the location, findings of the officers consistent with the concerns expressed by Mr. Clarke and the remaining evidence in its entirety, satisfies me beyond a reasonable doubt that the only reasonable inference to be drawn on all of the evidence is that it was Mr. Clarke who had entered the shed and caused the damage therein.

6. With respect to the evidence of the firearm. Again, at the commencement of the trial, the Crown had filed a certificate of an analyst who had examined the weapon or gun that had been seized within the barn. The Crown failed in its evidence to establish any continuity of any item, including the gun that apparently had been seized and then forwarding the gun to the appropriate authorities for analysis and, as a result, the Crown now relies again on other evidence to prove that the gun seized was in fact a firearm within the meaning of the Criminal Code. A firearm within the meaning of the Criminal Code means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily harm or death to a person and includes any frame or receiver of such a barrelled instrument and anything that can be adopted for use as a firearm. At the end of the day, I am satisfied, notwithstanding the failure of the Crown to be able to rely on any certificate, that the gun that was seized within the barn and presented as described by Sgt. Dolderman as pointing to the door and on a gun case on top of an ATV, was in fact a firearm. I say that for the following reasons:

7. Sharon Beaton testified that she was the owner of the firearm. She was shown a picture of the firearm, although never the actual firearm, but when the photograph was shown to her, she stated she "assumed" that was the .22 rifle that she was familiar with. That particular gun had been hers and her husband's firearm. She had brought it down on the long weekend from their cabin and had placed it in the gun case, which she states was locked, and which was situated under the bench seat of her truck. That truck had been parked in the garage/shed when she left the property on June 15. The gun remained under the bench seat. The back window of the truck had been broken and keys had been jammed into the ignition. It is not a great leap of logic on the evidence to find that someone was attempting to use the vehicle, broke in the back window, inserted improper keys and then removed the gun from under the bench seat and then removed it from its case.

8. I am fully satisfied that the gun that was located in the barn, being the only gun that was found within the barn, was in fact the gun that Ms. Beaton brought down from her cabin in May of 2017.

Ms. Beaton identified the gun as a .22 and as a long gun. She described how the gun had been stored in the garage in the corner of the shop and on that particular day was under the bench seat. She described where the ammunition for the gun could be found within the barn and stated the gun was operational and had been used by her husband and her for target practice the preceding fall.

Her husband had been "meticulous" about keeping the gun cleaned and in proper working order and her evidence is clear that the gun was operational and had been used for target shooting "quite a bit". When she observed the interior of the barn/shed upon her return to the property, she noted the empty gun case to be open and sitting on top of one of the ATV's. She described the gun as a .22, brown and black in colour and being a long gun, usually stored in the garage with ammunition.

3. Sergeant Dolderman, a very experienced police officer, was the officer that located the weapon within the barn. He removed it from its initial location but did note that it had been placed on an ATV pointing to the door. He wished to make the rifle safe and did so. While doing that he found a live round of ammunition in the chamber together with five other rounds of ammunition. Further, he and other police officers all referred to the gun in terms and treated the gun in such a way that it is clear those officers believed the gun to be a "firearm".

4. Based on that evidence, together with the evidence of Ms. Beaton, I am fully satisfied that the gun seized was a firearm within the meaning of the Criminal Code and the gun found in the garage by Sgt. Dolderman was in fact Ms. Beaton's firearm. I am further satisfied that the location of the gun pointing towards the door after having been removed from underneath the bench seat in the truck as evidenced by the break-in to the truck was all conduct initiated and carried out by Mr. Clarke. Indeed, the pointing of the firearm at the door is consistent with Mr. Clarke's apparent fear of "children outside and waiting for him" and the barricading of the door.

5. As a result, there will be findings of guilt on the counts relating to break and enter, possession of the firearm and theft of the firearm.

Counts 2 and 3

[132] These counts relate to possession and theft of the laptop. The laptop was discovered in the backpack of Mr. Clarke upon his arrest for break and enter and theft. He was queried on that and without even referring to the comments he made with respect to the laptop, Mr. Hart arrived on scene. He had reviewed video surveillance which the court did not see but concluded that someone had entered his truck and taken, among other things, his laptop and a laptop bag. The laptop bag was never discovered but the laptop bag found in Mr. Clarke's knapsack I find was in fact Mr. Hart's.

[133] Mr. Hart attended at the property and was able to access the computer using his password. The computer screen also indicated his name. I am fully satisfied it was his laptop and further that the laptop had been stolen during the early morning hours of June 18, 2017 as he noted in his evidence and as he determined from viewing the video surveillance and his truck where the laptop had been kept.

[134] I strongly suspect it was Mr. Clarke that committed the theft of the laptop given the location of Mr. Hart's property and proximity to Ms. Beaton's property, the timing of the theft of the laptop and finding it in the possession of Mr. Clarke, and the rural nature of the properties involved, but the evidence to support that finding is insufficient or absent, although apparently some of it may have been available. I am, however, fully satisfied that Mr. Clarke was in recent possession of that laptop fully appreciating that it had been obtained by the commission in Canada of an offence. Mr. Hart quite easily accessed the laptop. He came to the property because he had heard that the police were there looking at other issues and identified the laptop immediately and without difficulty. Mr. Clarke, on the other hand, when afforded an opportunity to provide a password failed or refused to do so.

[135] There will be a finding of guilt on the charge of possession and the count of theft relating to the laptop will be marked dismissed.

Possession of the Bicycle

[136] Mr. Harvey gave evidence with respect to a break-in at his residence situated in close proximity to that of Mr. Hart and indeed Mrs. Jestin in or near the Village of Everton. He was away, got a call from a neighbour, came home and discovered among other things his rather expensive bicycle had been removed from his garage. He gave a very detailed description of the bike including the fact that it had "K2" written on the side of it. He valued the bike at some five thousand dollars.

[137] He testified that sometime after June 18, 2017 the police called and told him he could pick up the bike at Ms. Beaton's property. He then attended apparently and found the bike within the garage and took it home.

[138] This matter causes the court some concern again with respect to the absence of evidence. Nowhere in the evidence of the Crown did anyone, other than Mr. Harvey, specifically identify or photograph the bike that had been located at the scene close to Mr. Clarke and in close proximity as well to the jacket. After being arrested for break and enter Mr. Clarke indicated both were his. Mr. Harvey never identified the bike that was found close to Mr. Clarke as being his bike and indeed the officers never gave any description that would be available for the court to determine that the "K2" apparently written on the bike was the same bike as Mr. Harvey had taken from his garage and ultimately is found in the garage at Ms. Beaton's address.

[139] The police do not even tell us they put it there, nor even photograph it.

[140] Realistically it is likely the same bike that was found with Mr. Clarke given its unique description and the fact that Mr. Harvey retrieved it from Ms. Beaton's garage after June 18, 2017, but there is really nothing in the evidence other than speculation given the absence of evidence concerning the description and details of the bike that the police located at the scene. One would have thought there would be a further and better description as well as some photographs of the bike so the court would have an opportunity to observe the bike, but that is not the case.

[141] I am prepared to give Mr. Clarke the benefit of the doubt on this particular charge and it will be marked dismissed.

[142] Before registering convictions I invite counsel to make submissions with respect to whether convictions should be registered on all counts.

Released: May 4, 2018

Signed: Justice Hearn