Court File and Parties

Ontario Court of Justice

Date: December 9, 2019

Court File No.: Newmarket, Central East Region 18-09311

Between:

Her Majesty the Queen

— and —

Caterina Petrolo

Before: Justice D.A. Harris

Heard on: November 26, 27, 28 and 29, 2019

Reasons for Ruling released on: December 9, 2019

Counsel:

• Peter Scrutton and Mabel Lai, counsel for the Crown
• Alan D. Gold and Alex I. Palamarek, counsel for the accused Caterina Petrolo

Decision

D.A. HARRIS J.:

Introduction

[1] Caterina Petrolo has been charged with one count of breach of trust by a public officer, contrary to s. 122 of the Criminal Code, and one count of attempt to obstruct, pervert, or defeat the course of justice, contrary to s. 139(2) of the Criminal Code. Both offences were alleged to have occurred at the City of Markham between June 1 and June 25, 2018.

[2] These are indictable offences. Ms. Petrolo elected trial in the Ontario Court of Justice. She pled not guilty and the trial began.

[3] Ms. Petrolo had applied for an order that the charges be stayed pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms on the basis that Ms. Petrolo's rights as guaranteed by sections 7, 8 and 11(d) of the Charter had been infringed. I dismissed that application.

[4] She also applied for an order excluding her statement to York Regional Police pursuant to section 24(2) of the Charter on the basis that the police had infringed her right to counsel as guaranteed by section 10(b) of the Charter. She further argued that her section 8 rights had also been infringed in the process.

[5] Two witnesses were called on this application. They were Detective Weick and Detective Leahy of the York Regional Police Service. I also saw an audio-video recording of Detective Goetz questioning Ms. Petrolo.

[6] I will deal first with the issue of her Charter rights.

Were Ms. Petrolo's Rights Infringed?

[7] Section 8 of the Charter of Rights and Freedoms guarantees that "Everyone has the right to be secure against unreasonable search or seizure".

[8] Section 10(b) of the Charter guarantees that "Everyone has the right on arrest or detention … to retain and instruct counsel without delay and to be informed of that right".

[9] Ms. Petrolo bears the burden of persuading me on a balance of probabilities that her section 10(b) rights were infringed.

[10] The Crown bears the burden with respect to the alleged infringement of her section 8 rights. However, for reasons that should become clear, I am concentrating on the right to counsel issue and, for the most part, treating this application as if the onus is on Ms. Petrolo.

[11] Section 10(b) requires that the police must give a detainee both sufficient information concerning rights to counsel and a reasonable opportunity to exercise those rights.

[12] The informational component of the right to counsel is triggered immediately upon arrest or detention. Absent legitimate safety concerns, police must immediately inform an accused person of the right to retain and instruct counsel.

[13] Further where a detainee states her intention to exercise her right to counsel, the police have a duty to provide the detainee with telephone access to counsel at the first reasonable opportunity. The burden is on the Crown to show that any delay in accessing counsel was reasonable in the circumstances.

[14] Finally, the police must hold off from attempting to elicit evidence from the detainee until she has been afforded a reasonable opportunity to exercise her rights to counsel.

[15] The police ran afoul of these rules on several occasions here.

[16] To assess the extent of their errors, it is necessary to view what they did in the context of the case.

[17] The charges against Ms. Petrolo stem from her employment as a York Region paralegal regional prosecutor, and her involvement in Provincial Offences Act prosecutions in that capacity. It is alleged that she used her position as a prosecutor to improperly influence the outcome of provincial offences matters.

[18] She only came to be investigated by York Regional Police after tangentially becoming a person of interest in a multi-jurisdictional investigation into police corruption. Constable Richard Senior was its originating and primary target. York Regional Police obtained judicial authorizations which led to them intercepting communications between Ms. Petrolo and Constable Senior and another York Regional Police Constable wherein dispositions in Provincial Offences Act matters of individuals known to either of those officers were discussed.

[19] On October 10, 2018, Ms. Petrolo was arrested when she attended her place of work at the Provincial Offences Courthouse located at 50 High Tech Road in Richmond Hill.

[20] Detective Leahy and Detective Weick approached her there and asked to speak to her in private. She led the two officers to an early resolution room, where Detective Leahy advised her that she was going to be arrested for obstructing justice and breach of trust by public officer. Detective Leahy further advised Ms. Petrolo that they preferred to formally arrest her and advise her of her rights to counsel outside of the workplace in order to avoid any unnecessary embarrassment. Ms. Petrolo was then permitted to go to her office to gather her purse and her water bottle and was permitted to leave a message for her supervisor before being escorted outside.

[21] She was taken to a police vehicle parked at the side of the building and at 9:20 a.m. was formally arrested and read her rights to counsel by Detective Leahy. Ms. Petrolo advised that she wished to speak with lawyer Gerry Borean. Detective Leahy began to caution her but because she had requested to speak to a lawyer, Detective Leahy held off and did not ask her about saying anything in answer to the charges. Ms. Petrolo was then handcuffed to the front by Detective Weick. Her purse, containing her cellphone, was placed in the trunk of the police car.

[22] They left for the police station at 9:23 a.m. and arrived at 9:32. At 9:34 a.m. Ms. Petrolo was paraded before Staff Sergeant Woodcock, at which time her purse was placed on the booking desk. She again requested to speak with lawyer Gerry Borean.

[23] At Staff Sergeant Woodcock's request, Detective Leahy took her to a private room to conduct a pat-down search, which was completed at 9:41 a.m.

[24] After the search, Detective Leahy returned Ms. Petrolo to the booking area. Detective Leahy removed her cellphone from her purse on the booking desk, and shortly after seized the cellphone and put it in a property bag. She then asked Ms. Petrolo for the password, and Ms. Petrolo provided it.

[25] At 9:51 a.m. Ms. Petrolo was escorted to a cell. Detective Leahy then contacted another detective in the wiretap room and requested that he call the cellphone "to prove the line." That was done.

[26] At 10:15 a.m., Detective Leahy attended Ms. Petrolo's cell and obtained "show cause information".

[27] At 10:20 a.m. Ms. Petrolo was put in touch with lawyer, Gerry Borean, and at the completion of the call at 10:30 a.m., she was returned to her cell. She remained there for nearly three hours before being taken to an interview room to provide a statement.

[28] The first infringement of section 10(b) rights occurred when the police officers did not immediately inform Ms. Petrolo of her right to counsel when they detained her.

[29] The excuse that this delay occurred because they did not want to embarrass her does not withstand scrutiny.

[30] They were in a private room. They could have arrested her, informed her of her rights to counsel and determined that she wanted to speak to Mr. Borean all within the privacy of that room. Further, there was a telephone in the room, and they could have called Mr. Borean from there. There may have been problems with allowing Ms. Petrolo an opportunity to speak to him privately but they could have at least started the process of ensuring that Mr. Borean would be available to speak to her at the earliest opportunity. Any such privacy issue was certainly still present when they did inform her of her rights after placing her in the police car.

[31] In this case the police did not handcuff Ms. Petrolo while in the building. They did nothing to demonstrate that she had been taken into police custody. I am satisfied that they could have behaved in exactly the same fashion even if they had formally arrested her and informed her of her rights before leaving the building. There would still have been no safety concerns causing them to act otherwise.

[32] After failing to do anything to contact Mr. Borean in the office, the police failed to rectify that situation at the police station. At least three police officers (Detective Leahy, Detective Weick and Staff Sergeant Woodcock) all dealt with routine administrative duties associated with booking Ms. Petrolo and failed to find the time to put her in touch with Mr. Borean until 10:20 a.m.

[33] I remind myself here that the burden is on the Crown to show that any delay in accessing counsel was reasonable in the circumstances. I am not satisfied that they have done so.

[34] Further, after Ms. Petrolo had expressed a desire to speak to her lawyer three times but before she was allowed to do so, police officers asked her for her phone number and for her phone's password. Both the phone number and the password qualified as evidence in this case and the officers should have held off asking for them until after Ms. Petrolo spoke to her lawyer.

[35] This was exacerbated during the interview with Detective Goetz when he repeatedly said things to her to the effect of "will we find this on your phone?"

[36] Counsel for Ms. Petrolo argued that obtaining her phone number and password constituted a seizure and that this was also an infringement of her section 8 rights. I agree.

[37] Having determined that Ms. Petrolo's Charter rights were infringed, the next issue is whether the statement made by Ms. Petrolo to Detective Goetz should be excluded pursuant to section 24(2) of the Charter.

Exclusion of Evidence Pursuant to Section 24(2)

[38] I reviewed the law on this in my earlier Ruling, but it bears repeating here.

[39] Section 24 of the Charter reads as follows:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) 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.

[40] With respect to section 24(2), the first question to be answered is whether the evidence was obtained in a manner that infringed or denied a Charter right.

[41] The Ontario Court of Appeal has stated that the following considerations should guide a court's approach to the "obtained in a manner" requirement in section 24(2):

(1) The approach should be generous, consistent with the purpose of s. 24(2);

(2) The court should consider the entire "chain of events" between the accused and the police

(3) The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct

(4) The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.

(5) The connection cannot be either too tenuous or too remote.

[42] I find that the "obtained in a manner" requirement has been satisfied in this case.

[43] There was a possible causal connection between the evidence and the alleged infringement.

[44] During the interview, Detective Goetz showed Ms. Petrolo several photographs and screen shots taken from Constable Senior's phone. He also played several recorded conversations between Constable Senior and herself for her to hear. These, taken together with what Detective Goetz said to her made it clear that the York Regional Police had access to communications between herself and Constable Senior.

[45] In addition to this, Detective Goetz made references on seven separate occasions to her phone, all to the effect of asking her what they were going to find there.

[46] Ms. Petrolo also knew that the police had been in possession of her phone and her password for more than three hours before the interview even began.

[47] I heard no evidence that this affected how Ms. Petrolo answered his questions. I accept however that it might have done so.

[48] Having said all that, I must point out that I am not placing much, if any, emphasis on this causal connection. I would have been satisfied that the statement was "obtained in a manner" based on the temporal and contextual connections that existed here.

[49] Crown counsel quite properly conceded that both connections are present.

[50] As to the temporal connection, the interview began within five hours of her detention. She was in police custody throughout that time.

[51] I am also satisfied that there is a clear contextual connection.

[52] The second issue pursuant to section 24(2) is to determine whether admission of the statement would bring the administration of justice into disrepute.

[53] To determine this, R. v. Grant by the Supreme Court of Canada directs me to assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

(1) the seriousness of the Charter-infringing state conduct,

(2) the impact of the breach on the Charter-protected interests of the accused, and

(3) society's interest in the adjudication of the case on its merits.

[54] I must balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[55] In R. v. Grant, supra, the court discusses the first factor, the seriousness of the Charter-infringing state conduct, as follows:

The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

[56] The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes.

[57] Admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a willful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law.

[58] Good faith on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.

[59] The Supreme Court commented specifically on the obtaining of statements, saying:

The first inquiry focusses on whether admission of the evidence would harm the repute of justice by associating the courts with illegal police conduct. Police conduct in obtaining statements has long been strongly constrained. The preservation of public confidence in the justice system requires that the police adhere to the Charter in obtaining statements from a detained accused.

[60] In R. v. Boutros, the Ontario Court of Appeal stated that the failure to advise a detainee of his right to speak to counsel before providing his cellphone password was serious.

[61] Doherty J.A. wrote that:

In considering the seriousness of the police misconduct as it relates to the failure to advise the appellant of his right to speak to counsel before providing his cellphone password, I accept that the obligation of the police to provide that opportunity to the appellant is well-established by authorities like Sinclair. The police should have understood this obligation. I also consider this s. 10(b) breach in the context of the earlier serious breaches of s. 10(b). At the time of the appellant's arrest and in the hours following his arrest, the officers exhibited little, if any, concern or respect for the appellant's s. 10(b) rights. The police breach of the appellant's s. 10(b) rights when they demanded that he provide his password falls toward the more serious end of the spectrum of police misconduct and tends to favour exclusion of the text messages.

[62] I too find that the failure to hold off on requesting the password was a serious breach.

[63] I am more concerned however with the cumulative effect of the several breaches.

[64] Both Detective Leahy and Detective Weick were experienced police officers.

[65] They knew that they were required to advise Ms. Petrolo of her rights to counsel immediately upon detention.

[66] They knew that they were supposed to contact her lawyer at the first reasonable opportunity.

[67] They knew that after she had asked to speak to a lawyer they were supposed to hold off from asking her for her password until she actually spoke to the lawyer.

[68] They were aware of the importance of intercepted communications in this case and that some of these might be found on Ms. Petrolo's cell phone.

[69] They met prior to going to arrest Ms. Petrolo for the express purpose of planning how the arrest should be carried out.

[70] Despite all of this, they repeatedly ignored her section 10(b) rights.

[71] I find that the seriousness of these cumulative breaches tends to favour exclusion of the statement.

[72] I will point out that I found it unnecessary to give separate consideration to the section 8 breach to reach this conclusion. The section 8 breach was part and parcel of the section 10(b) breaches which in and of themselves were sufficiently serious as to favour exclusion.

[73] With respect to the second factor, the impact of the breach on the Charter-protected interests of the accused calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

[74] I again note the comments of Justice Doherty in R. v. Boutros, supra where he said:

40 The assessment of the impact of the Charter breaches on the appellant's Charter-protected interests is mixed. The breaches had little, if any, effect on the appellant's privacy interests. They did, however, have a negative impact on the right protected by s. 10(b). By failing to give the appellant a proper s. 10(b) caution, the police effectively denied him the right to make an informed decision as to whether to provide his password and effectively compelled him to cooperate with them. The denial of this right is important, particularly in the context of a fast-flowing investigation. The negative impact in this case is, however, somewhat mitigated by the very limited nature of the demand made by the police officer. He requested only the password, something which in the end had no real effect on the course of the investigation.

41 I would describe the net impact of the Charter breaches on the appellant's Charter-protected rights as relatively minor. This consideration weighs, although not heavily, in favour of excluding the evidence.

[75] There are differences in the case before me. I do not know whether the police ever examined the contents of Ms. Petrolo's phone. The Crown has not attempted to introduce anything from her phone into evidence. Despite this significant difference, I too am satisfied that the York Regional Detectives effectively denied Ms. Petrolo the "right to make an informed decision" and "effectively compelled her to cooperate with them".

[76] After considering all of this I conclude that the second inquiry of Grant weighs, "although not heavily" in favour of exclusion of the statement.

[77] As for the third inquiry, society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the section 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.

[78] The reliability of the evidence is an important factor in this line of inquiry.

[79] In this case, I do not know if the statement is reliable. It might be but I cannot be certain of that. Based on its content, I strongly suspect that if I admit it into evidence, Crown counsel will ask me to accept only parts of it as being true and to reject other parts. Counsel for Ms. Petrolo may then ask me to reject the former parts and accept the latter parts.

[80] The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry.

[81] Here, Crown counsel has advised me that exclusion of the statement will not bring this prosecution to an end. It is clear to me that this statement is not nearly as important to the Crown's case as the evidence dealt with in the earlier application.

[82] I must also consider the seriousness of the offence at issue. This can cut both ways because, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

[83] The alleged offences are serious ones that go to the very legitimacy of the Provincial Offences Court process.

[84] Against this I must balance the need to dissociate the court from what I found to be the rather cavalier attitude of the police with respect to Ms. Petrolo's rights.

[85] After considering all of these factors, I find that the truth-seeking function would be better served by the exclusion of the statement.

[86] As I stated above, I must balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. No overarching rule governs how the balance is to be struck. The balancing is qualitative in nature and therefore not capable of mathematical precision.

[87] The Ontario Court of Appeal has stated that the third ground of inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. However, the third inquiry will seldom, if ever, tip the balance in favour of admissibility if both the first and second inquiries make a strong case for exclusion.

[88] In this case I found that all three inquiries favour exclusion of the statement.

[89] Accordingly, I conclude that the long-term interests of the administration of justice are better served by the exclusion of the statement.

Order

[90] The application is allowed, and the statement will be excluded.

Released: December 9, 2019

Signed: Justice D.A. Harris