Ontario Court of Justice

Date: February 24, 2020

Court File No.: Toronto, College Park 4811-18-75001389

Between:

Her Majesty the Queen

— AND —

Keashawn George Harper-Grant

Before: Justice Bovard J.

Heard on: September 16, 2019

Reasons for Judgment released on: February 24, 2020

Counsel

Mr. R. Wilson — counsel for the Crown

Ms. H. Dudding — counsel for the accused Keashawn George Harper-Grant

Judgment

Bovard J.:

Charges

[1] On March 25, 2019, the police charged Mr. Keashawn George Harper-Grant with the following firearms offences:

1. Possession of a loaded prohibited firearm – s. 95 (1)
2. Possession of a prohibited firearm – s. 91 (1)
3. Possession of a prohibited firearm – s. 92 (1)
4. Possession of a prohibited device (firearm magazine) – s. 92 (2)
5. Store a prohibited firearm in a careless manner – s. 86 (1)
6. Store ammunition in a careless manner – s. 86 (1)
7. Possession of a firearm obtained by an offence – s. 96 (1)
8. Possession of a firearm knowing the serial number was defaced – s. 108 (1)

[2] Mr. Harper-Grant elected trial in the Ontario Court of Justice. He brought an application under the Charter that alleges that the police breached his rights under s. 10 (b) of the Charter. He asks the court to exclude all the incriminating evidence pursuant to s. 24 (2) of the Charter.

[3] In addition, he asks the court to find that an utterance that he made was involuntarily and to exclude it for that reason.

Introduction

[4] On March 25, 2019, Mr. Harper-Grant was at a party at 89 Dunfield Avenue in Toronto. The party was being held in apartment 1305, which was an AirBnB apartment rented by a close friend. The police received information that someone other than Mr. Harper-Grant had a firearm at the party.

[5] During the party, the Emergency Task Force (ETF) executed a search warrant at the apartment. After they secured the apartment and the 11 occupants, they turned the apartment and the occupants over to the Guns and Gangs Task Force (GGTF) and then left the scene.

[6] The officers of the GGTF put all the occupants in one bedroom while they searched the apartment. One of the occupants was Mr. Harper-Grant's girlfriend with whom he has a young child.

[7] During the search, an officer found a loaded 9 mm hand gun on the top shelf of a cupboard in the kitchen.

[8] The police arrested all the occupants for possession of the firearm. One officer gave the occupants en masse their rights to counsel.

[9] While the occupants waited for the police to finish their search many expressed dissatisfaction with being arrested, handcuffed, and huddled into a bedroom.

[10] After a while, Mr. Harper-Grant came forward and said that the firearm was his. Officer Miles testified that after this admission, he took Mr. Harper-Grant to the kitchen and asked him where the firearm was and what colour it was. The officer said that Mr. Harper-Grant answered both questions correctly without seeing the firearm.

[11] The police arrested him for possession of the firearm and took him to the police station to interrogate him. Mr. Harper-Grant told the police that he had a lawyer and that he wanted to speak with her. He did not have her name right so the police could not contact her. Therefore, they called duty counsel. Approximately 1 hour and 11 minutes after he claimed ownership of the gun, he spoke to duty counsel.

[12] At trial, Mr. Harper-Grant testified that he lied about the firearm being his in order that his girlfriend could be released and be able to go get their baby from the babysitter.

[13] He denied that he told Officer Miles where the firearm was in the kitchen and what colour it was.

Issues

[14] The issues are:

1. Did the defence prove on a balance of probabilities that the police breached Mr. Harper-Grant's rights under s. 10 (b) of the Charter?

   • (a) If they did, should the court exclude the evidence of Mr. Harper-Grant's utterance that the firearm was his pursuant to s. 24 (2) of the Charter?

2. Did the Crown prove beyond a reasonable doubt that Mr. Harper-Grant made his utterance about the firearm being his voluntarily?

3. Did the Crown prove beyond a reasonable doubt that Mr. Harper-Grant told Officer Miles the location and colour of the firearm?

4. Aside from the Charter issues, did the Crown prove beyond a reasonable doubt all the ingredients of the charges against Mr. Harper-Grant?

Procedural Agreements

[15] The parties agree to proceed with the case in a blended manner with the following exceptions:

1. The evidence of any civilian witnesses, including Mr. Harper-Grant, that is given on the voir dires concerning the alleged breach of s. 10(b) of the Charter and the voluntariness of Mr. Harper-Grant's utterance to the police will apply solely to the voir dires.

2. The evidence of all police witnesses applies to the two voir dires and to the trial proper.

Admissions

[16] The defence made the following admissions:

1. Identity
2. Time and date of the offences
3. Jurisdiction of the court to hear the case
4. The ETF did not make any threats, inducements or promises to Mr. Harper-Grant.

The Evidence

Police Evidence

[17] On the day in question Sergeant Morris was a member of the Emergency Task Force (ETF) unit that raided a two-bedroom AirBnB apartment at 1305, 89 Dunfield Avenue in Toronto to execute a search warrant. He said that they used a dynamic entry, meaning that they did not announce their presence and used a ram to get inside the apartment.

[18] It took the ETF about 12 minutes to secure the apartment and its occupants. Then they turned the apartment and the occupants over to the Toronto police Guns and Gangs Task Force (GGTF), who dealt with the occupants and searched the apartment.

[19] Detective Stolf was in charge of the GGTF unit. They were present at 12:30 a.m. when the ETF executed the search warrant for the apartment.

[20] Officer Dunk, one of the officers with the GGTF, testified that Mr. Harper-Grant was not the target of the search warrant.

[21] When Detective Stolf entered, he saw that two women were being detained by members of the ETF in one of the bedrooms. The women were upset and complaining.

[22] He heard persons asking what was happening. They were upset.

[23] He saw several persons in custody in the living room. Some were lying on their stomach on the floor, some were sitting down. Detective Stolf also saw two other females in custody in another bedroom.

[24] Mr. Harper-Grant was one of the persons in the living room. He was lying on the floor.

[25] Detective Stolf helped those lying on the floor to get up and sit in chairs, or on the floor. Then they brought all the occupants into the living room. They were upset and had a lot of questions.

[26] The only time that Detective Stolf would have "handled" Mr. Harper-Grant was during their entry into the living room when he helped him get up from a lying position to a seated one.

[27] Detective Stolf addressed the occupants en masse. Some of them were in handcuffs, some were not. He told them that they were the GGTF and that they were executing a search warrant for firearms. He "made the copy visible to everybody". They appeared to understand. They started to calm down. He showed the warrant and its appendices to two or three persons that wanted to look at it. Then he left it in the room.

[28] Next, he told the occupants that they were "being detained for possession of a firearm" and that they were executing a search warrant. He told them that no one was free to leave. It was approximately 12:40 a.m. or 12:42 a.m.

[29] Detective Stolf advised them all, including Mr. Harper-Grant, of their right to counsel. He did this by way of a general announcement. Concerning the wording of the right to counsel, he did it from memory:

A. So, I just – I advised them that they were all being detained for possession of a firearm.

Q. Yes.

A. I advised them, you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish.

Q. Mm-hmm.

A. If you are charged with an offence you may apply to the Ontario Legal Aid Plan for assistance, 1-800-265-0451 is a toll free number that will put you in contact with a free legal aid duty counsel lawyer.

Q. Okay. So, that's – that's generally from your notebook.

A. It's generally, yes, but I've recited it enough times that I generally know it off of memory.

[30] He said that although it is not in his notes, this recitation is "the same way it's written in – in the [pre-written memorandum books] memo book and that's exactly what I said".

... I know exactly word for word what I said to those people, and it's the same evidence I gave in my evidence in-chief. When I make my notes, even prior to this case, I place someone under arrest, I never write the 1-800 number down in my book. I – I make notations that I advise them of their right to counsel. And I know, based on that notation exactly what I said to those people.

[31] After this recitation he asked if they understood. He said that "The room appeared to understand what I was saying". He asked if anyone wanted to call a lawyer. No one said that they did. He agreed that he could not tell what facial expressions or body movements the detainees had. He conceded that some of them could have been nodding or "moving their body in a yes or a no fashion".

[32] He did not "get any nods or indications from people that they did not understand". He based his belief that they understood on the fact that no one said anything to the contrary. He said that "Once I explained the detention and I asked if everyone understood and I showed them the warrant, the reaction from the room was everyone, in my experience, appeared to understand what was going on …"

[33] Mr. Harper-Grant said that he did not remember Detective Stolf mentioning the 1-800 number, but it is possible that he did.

[34] But he also said that had Detective Stolf mentioned the 1-800 number, he would have asked to call his mother to get Ms. Dudding's phone number.

[35] Officer Racette, one of the officers involved in the search, did not have any note that Detective Stolf gave the detainees their right to counsel. Neither did Officer Miles, the central note taker. He could not say whether Detective Stolf "told [them] about a lawyer at that point". Even had he said it, he would not have written it down because he does not "get into other officers' rights to counsel".

[36] Detective Stolf did not say anything about the right to silence, or caution anyone.

[37] He did not speak to any person individually regarding anything to do with rights to counsel.

[38] He did not make any threats, promises or inducements to anyone. Nor did any officer do so in his presence.

[39] Detective Stolf agreed that the police did not have a plan concerning how persons would exercise their right to counsel. He did not know how many persons were going to be in the apartment. However, had a person asked to speak to a lawyer he would have done his best to facilitate it "whether it was going to be possible within five minutes, ten minutes or it was going to be impossible, again, it would have to be depending on various factors".

[40] Next, he took entry photographs before they started searching. This is to have a pictorial record of the condition of the apartment prior to the search. He also took exit photographs after they finished the search. The pictures are exhibits in the trial.

[41] Among the "entry" photographs is a pair of shoes, which belong to Mr. Harper-Grant (exhibit 10).

[42] Officer Oliver told him that he found a firearm in a kitchen cupboard. They went to the kitchen where Officer Oliver pointed it out to him. This evidence is simply narrative. It is not admitted for the truth of its contents. Detective Stolf took a picture of the firearm and of the kitchen cupboard where it was found.

[43] Afterwards, Officer Oliver seized the firearm. It had a round in the chamber. The firearm, the round and the magazine are exhibits. There were 13 rounds of ammunition in the firearm and magazine.

[44] After the search, Detective Stolf took an "exit" picture of black shoes that were on the kitchen floor, below the cupboard where they found the firearm (exhibit 24). They are the same ones that he took a picture of in his "entry" photographs (exhibit 10). It appears that at some point an officer may have moved the shoes between the time that he took the "entry" photographs and the time that he took the "exit" photographs because they are in different locations on the floor. Detective Stolf said,

When I took the entry photographs they were depicted – they were in the kitchen. When this photo was taken, whether they were inadvertently or moved by an officer who was searching around on the floor, I can't speak to that.

[45] Mr. Harper-Grant said that he did not leave the shoes in the kitchen where the exhibits show them. He would never leave them in the kitchen because his mother taught him not to take off his shoes in the kitchen. He left them in the hallway. He said that he took them off and put on slippers because the shoes hurt his feet.

[46] On consent, the Crown introduced as exhibits certain affidavits and certificates concerning the firearm, the magazine and the ammunition. The defence admitted the continuity of the firearm.

[47] Officer Racette said that he told the detainees, who were all in a bedroom, that they found a firearm in the "common kitchen area". At 1:40 a.m., five minutes after they found the firearm, he arrested them all for possession of the firearm.

[48] Detective Stolf said that as part of the arrest Officer Racette would have given everyone their rights to counsel. However, he did not have any personal knowledge that he did this. Detective Stolf did not instruct any of the officers to provide rights to counsel, or caution any of the detainees that the police interviewed in the apartment.

[49] In one part of his testimony, Officer Racette said that he told the detainees that,

they have every right to contact a lawyer, as soon as possible. If they can't afford one, I went through the duty counsel phone number, as I previously did on my testimony, asked everyone if they understood. Everyone just blankly nodded ... anybody want a lawyer. Everyone just stared. And I exited the room.

[50] He said that he was not sure of the exact words that he used, but he gives rights to counsel every day. This is what he "would have" said.

[51] In another part of his testimony, Officer Racette confirmed that he gave all the arrested persons their right to counsel. He told them that,

they had every right to contact a lawyer as soon as possible. If one – they don't have one they could call duty counsel, 1-800-265-0451. Everyone just nodded to me. There's 11, again 11 people in there. It was just a nod. Asked anyone if they would like to contact a lawyer at the time and it was just blank stares. I asked everyone if they understood ...

... everyone nodded. And then I left the room …

[52] In his notes, he did not mention that he recited the phone number. He said that when he noted that he advised them all their right to counsel it made no difference whether he wrote the phone number in his note book.

[53] Officer Miles did not have a note that Officer Racette advised the detainees that they had the right to counsel. I presume that this is for the same reason that he gave above concerning Detective Stolf; namely, that he does not "get into other officers' rights to counsel".

[54] Officer Racette interpreted the nods to mean that they understood what he told them. He agreed that the nods could have meant that they wanted to speak to a lawyer.

[55] He did not have a note that he asked the detainees whether they wanted to call a lawyer. But he said that he asked them. Mr. Harper-Grant said that he did not ask them if they wanted to call a lawyer.

[56] Officer Racette did not caution the detainees.

[57] He did not threaten anyone or make any promises or inducements to anyone. Nor, did any officer do any of these things in his presence.

[58] After Officer Racette finished, Officer Dunk came to the room to stay with the detainees. He stood by the door of the bedroom where they were. He said that there were 11 persons in the room, which was about 12 feet by 10 feet. They were upset that they were being charged with possession of the firearm. Some were saying that they had jobs to go to and children that they had to get home for. Everyone was concerned how long things would take and whether they were going to court in the morning.

[59] This talk continued for about 20 to 30 minutes. Mr. Harper-Grant was not one of the persons that expressed these concerns.

[60] Defence counsel asked him if they told the detainees why they were all being charged with possession of the firearm. Here is the exchange:

Q. Okay. One of the things that you were saying is, this is happening to all of you because we don't know whose this is, so you're all being charged, right?

A. The decision was to charge everyone, yes.

Q. Yes.

A. 'Cause we don't know whose gun it is.

Q. Yeah. And people were saying, I don't know anything about it. I don't know anything about it. And you're saying, well, we don't know that, so you're all being charged, right?

A. To sum it up, yes.

[61] Officer Dunk "believed what [he] would have said was" that if the person who brought the firearm to the apartment owned up to it, "this investigation would change". But he did not say how it would change.

[62] Mr. Harper-Grant said that Officer Dunk was answering questions, but in an "I don't care manner". He did not seem to care what they told him. He just wanted someone to admit that the firearm was theirs.

[63] Officer Dunk said that Mr. Harper-Grant stood up and started walking towards him. He seemed upset. Officer Dunk told him to sit down. He kept coming towards Officer Dunk. The officer asked him what he was doing and told him to sit down. Mr. Harper-Grant said, "it's my gun, just take me in". He seemed aggressive. He was not happy with the situation. But he seemed calm considering the circumstances. Officer Dunk put his hand on his shoulder to take control of him and started to walk him out of the bedroom. Mr. Harper-Grant was very cooperative.

[64] When they were almost out of the room, Mr. Harper-Grant said, "you guys better fill up my canteena when I'm in". Officer Dunk said that Mr. Harper-Grant did not turn his head when he said this.

[65] Officer Dunk did not give him his rights to counsel or caution him. He passed him off to Officer Miles. He said that he could have told Mr. Harper-Grant that he could speak to a lawyer and cautioned him, but Mr. Harper-Grant had caught him off guard and Officer Miles was right there. He did not tell Officer Miles to give him his rights to counsel or caution him.

[66] After Officer Dunk gave Mr. Harper-Grant to Officer Miles, he resumed his duty of watching over the detainees.

[67] At 2:34 a.m., Officer Dunk turned the bedroom over to Officer Black. Prior to this time, Mr. Harper-Grant did not ask to speak to counsel. He did not ask for a phone call, either. But Officer Dunk did not have a note of rights to counsel being read. However, he said that even though he did not make a note of it, he remembered that "rights to counsel were given". But he knew that he did not do it.

[68] Soon after, Officer Dunk was asked to "take Mr. Harper-Grant to 53 Division to try and get a statement out of him". Before they left, they allowed Mr. Harper-Grant to retrieve his two phones from the kitchen.

[69] Officer Miles said that when he was with Mr. Harper-Grant in the kitchen he pointed out the phones. They were on the kitchen counter where the police put the property of all the detainees.

[70] Officer Miles's notes say, "In kitchen with KGH and 34. Points out the flip phone". He said that the police did not ask Mr. Harper-Grant "Which one of these are yours? These are coming back to the division with us". Officer Miles was not trying to identify which of the phones belonged to Mr. Harper-Grant. He did not ask him about the phones. He did not see anyone else ask him, either. Officer Dunk did not give him rights to counsel or caution him before he selected his phones.

[71] Officer Dunk turned Mr. Harper-Grant over to other officers who took him to 53 Division. They took him because they had in-car cameras in their cruiser. Officer Dunk did not so he followed in his cruiser.

[72] The Crown asked Officer Dunk "Okay. Now, on the way down, between 12:30 – after 12:36, did you ever have a – a secondary conversation with Mr. Harper-Grant"? Officer Dunk said that he asked him if he wanted the police to call duty counsel for him, did he want to speak to a private lawyer if he had one.

[73] It appears from his evidence that he did not give Mr. Harper-Grant his rights to counsel before this because they had no way to facilitate him contacting a lawyer.

[74] Mr. Harper-Grant said that he wanted to speak to "Hillary, with the last name of Dunping". Officer Dunk agreed that it could have been "Dudding". Then in cross-examination he said that after reviewing his notes it was "Dunding". He said that he mis-pronounced it the first time.

[75] Mr. Harper-Grant did not have Ms. Dudding's phone number. Once they got to 53 Division, Officer Dunk looked for her number as "Hillary Dunping". He did a search on Google and in the Lawyers Directory. He did not find a listing. He did not ask Mr. Harper-Grant if there were another person that they could call to help him get hold of a lawyer. He said that he "let my partner know". That was Officer Miles. But Officer Dunk did not say what he let him know. He "believed" that he asked Mr. Harper-Grant about alternative ways to get hold of Ms. Dudding.

[76] But he thought that he spoke to a lawyer eventually before going into the interrogation room with Officer Dunk. He "believed" that he spoke to duty counsel, or his own lawyer, but he was not the officer that made that call. He "believed" that it was Officer Miles. Officer Dunk was not sure if Mr. Harper-Grant spoke to duty counsel or his own lawyer.

[77] Officer Dunk said that he did not recall if Mr. Harper-Grant "expressed any dis-satisfaction with the advice he received". This assumes that he received advice, which Officer Dunk was not sure of. They were in the room with Mr. Harper-Grant for three minutes. He did not give them a statement.

[78] Next, the officers had a debriefing and then they began working on the case. Officer Dunk took Mr. Harper-Grant from the interrogation room to the cells so he could get a drink of water and use the bathroom. He did not have any other dealings with Mr. Harper-Grant.

[79] Officer Racette said that after he finished with the detainees in the bedroom, he took statements from several of the detainees. He never had any contact with Mr. Harper-Grant, other than when he addressed the detainees en masse.

[80] Detective Stolf "believed" that he was in the living room area when Officer Racette spoke to the detainees. He did not hear exactly what Officer Racette said to them, but he heard yelling and screaming from the bedroom when he told them that they were under arrest. This went on for several minutes. "People were upset" and "quite angry". He heard predominantly female voices. Officer Racette testified that no one yelled or screamed. He would have made a note had anyone screamed. There was no uproar, nor was anyone upset. But they were not "joyous".

[81] At this time, or before, the detained persons would not have been able to see where Officer Oliver found the firearm.

[82] The police continued searching the apartment. At approximately 2:10 a.m., Detective Stolf saw Officer Miles with Mr. Harper-Grant in the kitchen area. Officer Miles told him that Mr. Harper-Grant had made an admission regarding the ownership of the firearm. This evidence was not adduced for the truth of its contents, it is simply to explain why at that point they called for a cruiser to come and take Mr. Harper-Grant to the police station to be interrogated. They hoped to get his admission on videotape.

[83] Detective Stolf told Officer Miles to go with Mr. Harper-Grant to the police station, "facilitate the call to counsel and then have him put on video to corroborate the utterances that were just made". Detective Stolf believed that Mr. Harper-Grant "was put in contact with counsel". Officer Miles and Officer Dunk attempted to get his statement on video.

[84] Detective Stolf "advised other members of the team that the persons in that room were to be interviewed" regarding "what they had just witnessed, just transpired". Detective Stolf "believed" that Officer Racette and Officer Black took statements. He could not recall, but he thought that Officer Dunk took statements as well. Officer Oliver could have also taken statements. He took the exit photographs after the interviews were finished.

[85] They left the apartment at 3:09 a.m. Detective Stolf went to 53 Division. The various officers worked on completing the paper work and other duties regarding the case.

[86] Detective Stolf explained in cross-examination that he was in charge of the search. They had an operational plan that covered such things as radio dispatches, taking photographs and various other things involved in their execution of the search warrant.

[87] Officer Black arrived at the apartment after the other officers. He was instructed to take statements from the detainees. He interrogated three of them. When defence counsel asked him if he told them that they had the right to call a lawyer, he said "I would go off of my officers that were in there before that they would advise them of that, yes". He said that he presumed that the other officers had given them rights to counsel.

[88] When defence counsel pressed him more on this point he said "Sorry, if I may. The people I spoke to I asked if they needed to speak to a lawyer and they didn't want to". This was not in his notes or in the statements that he took, however.

[89] Contradictorily, he agreed that earlier in the cross-examination he said that he did not have to ask about rights to counsel because he presumed that it had been done by the other officers.

[90] He tried to explain this by saying that,

So, if I can explain myself. I have a process that I – the way I do things when I take a statement. I'm not going by the letter. I just say, listen, you know you can talk to a lawyer and whatever the response is, given the circumstances with everything. I've done this since I was – the start of like becoming a police officer. This is just my practice. My notes are to refresh my memory. I don't need to put it in because I know this is how I always start all my statements.

[91] I am not sure that explains much.

[92] He said that he gave them rights to counsel before he questioned them, but this is not in his notes.

[93] He did not have anything to do with Mr. Harper-Grant.

[94] He did not threaten anyone or offer anyone inducements or promise anything to anyone.

[95] Officer Ebrahimi testified about his involvement in the search, but he did not add anything of note other than to say that he did not threaten anyone or offer any inducements or make any promises to anyone. Nor did he hear any officer do any of these things.

[96] He said that he heard Detective Stolf give the detainees their rights to counsel, but it was in answer to a very leading question on this very contested issue. Therefore, I accord his answer very little weight. I find support for this decision in the question and answers that preceded the leading question:

Q. And as far as what was said with respect to the people by Detective Constable Stolf, do you have any memory of what was said by him?

A. Not the specific.

Q. Okay. When you say not the specific, can you provide a general, if you can?

A. Of Detective Stolf's conversation with the found-ins?

Q. Of what Detective Constable – from what you heard Detective Constable Stolf say.

A. I don't remember verbatim, but it was in the premise of "Let us do our job." And he explained I believe the detention, and that was it.

Q. Do you recall if he gave rights to counsel?

A. I believe so, yeah.

[97] Officer Oliver explained that he helped to search the apartment. He was there when Detective Stolf explained to the detainees what was happening. He also heard Detective Stolf give them their rights to counsel. Then he said that he and the other officers waited while Detective Stolf took the entry photographs.

[98] The Crown asked him:

Q. I just want to stop you, before you go on about the photographs. When Detective Stolf provided rights to counsel, did he provide anything else other than the rights to counsel?

A. I have it in here he provided rights, so standard...

THE COURT: Sorry Officer, what was the question?

MR. WILSON: Q. Other than giving rights to counsel, did he provide any other duties that were...

A. I recall that he gave – he explained what was going on...

Q. Yes.

A. ...as far as the search warrants were concerned, and he also gave rights to counsel to the – to the crowd.

Q. Okay. Were they – did he provide a caution?

A. He would have provided a caution too, yeah, everything – the rights to counsel – that is in the – within the rights to counsel at the back of the memo book, yes.

Q. Okay. So does rights to counsel to you include the caution?

A. To me it does, yes.

[99] The defence did not object to these questions, nor did I comment on them, but in reviewing the transcript, I see that they are leading questions on an important issue in the case. Consequently, I accord little weight to Officer Oliver's evidence that Detective Stolf cautioned the detainees.

[100] I note that after a lot of cross-examination, "would have provided a caution" turned into certainty that he did.

[101] After Detective Stolf finished taking the entry photographs, they began searching the apartment. Officer Oliver found the loaded firearm on the top shelf of a kitchen cupboard.

[102] He saw a pair of black shoes on the kitchen floor.

[103] After this, he took statements from two of the occupants of the apartment. He asked them if they wanted to give a statement. They said that they did. He did not give them rights to counsel or caution them because he was present when Detective Stolf cautioned the detainees "at the outset of the investigation".

[104] Officer Oliver did not threaten anyone, make any promises or offer any inducements to anyone. Nor did any officer do any of these things in his presence.

[105] Officer Miles was the central note taker. He said that he remembered that Officer Racette told the detainees that they found a firearm and that they were all under arrest for possession of the firearm. Officer Miles testified that "I remember him giving rights to counsel – sorry – he told everybody that a loaded handgun was located, everyone's going to be arrested and charged".

[106] I am not sure if by saying "sorry" he was indicating that he mistakenly said that Officer Racette gave the group their rights to counsel.

[107] Concerning Mr. Harper-Grant's comment about filling his canteena, Officer Miles said that Mr. Harper-Grant "turned around and looked back into the room … and said 'You guys better fill my canteen when I'm in". Ten minutes later he put this in his notes with quotation marks.

[108] However, he contradicts Officer Dunk who said that Mr. Harper-Grant did not turn his head when he said this. Officer Miles said that he was standing right in front of Mr. Harper-Grant when he said this.

[109] After Mr. Harper-Grant said this, Officer Miles took him to the kitchen. In order to satisfy himself that Mr. Harper-Grant was telling the truth about it being his gun, he asked him: "If it's your gun, where was it and what does it look like?" He answered, "It's the brown one in the cupboard". Officer Miles testified that the gun was not in the kitchen at this time.

[110] Officer Miles believed that Mr. Harper-Grant was "arrestable" when the firearm was found. Actually, he believed that he was already under arrest. He testified that Officer Racette "advised all eleven detainees that a handgun was located, and they were all being arrested and charged with possession of a loaded firearm".

[111] He did not caution him before he asked him these questions because he was not satisfied that he was telling the truth. Although he agreed that he should have cautioned him at this point. Neither did he tell him that he had the right to speak to a lawyer.

[112] After Mr. Harper-Grant confessed, Officer Miles told him that they were going to "take you in and you can say that on video". He said this because,

I wanted him to understand the ramifications of what he was – what he was saying. I want him to understand that this is not just, you know, a conversation that we're going to end here, you know what I mean, in a condo unit. "You're going to go back to the station, we'll put you on video, and you're going to say this firearm is yours."

[113] In cross-examination, Officer Miles stated that he told him "If it's yours, you realize you're going to have to come back to the station and say this on video", in a roundabout way". Right. I know I asked him a couple questions before that, but I wanted him to understand what the ramifications were, yes. We would take a recorded version of it".

[114] Officer Miles candidly admitted that,

Honestly, at the time I was thinking – thought it was – there's a possibility that he was just saying this for – for one of many reasons. I wasn't necessarily satisfied with the fact that he said he had the firearm, that it was his.

[115] Regarding giving a statement on video, Mr. Harper-Grant said, "Yep, let's do it".

[116] Then Officer Miles read him his rights to counsel from the standard police card:

"I'm informing you that you're going to be arrested and charged with possession of a loaded firearm. You have the right to retain counsel without delay, you know, 1-800-265-0451 is a phone number that'll put you in contact with Legal Aid duty counsel."

[117] Mr. Harper-Grant said that he understood. Officer Miles asked him if he wanted to call a lawyer now. He said, "I guess I should". He asked him if he had a lawyer. Mr. Harper-Grant told him that it was "Hilary Dunding". Mr. Harper-Grant did not remember saying these words exactly, but he conceded that he could have said words to that effect.

[118] Next, he gave him the standard caution from his notebook: "You are going to be charged with possession of a loaded firearm. You are under no obligation to say anything in answer to these charges". Officer Miles said that Mr. Harper-Grant told him that he understood. Mr. Harper-Grant testified that he did not remember being cautioned.

[119] Mr. Harper-Grant said that Officer Miles did not read him his rights to counsel until they were downstairs in the building. The Crown asked him "what was it that they said to you upstairs in the room"? Mr. Harper-Grant replied that Officer Miles asked him if he had a lawyer that he would like to call. It is not clear to which room the Crown or Mr. Harper-Grant were referring.

[120] Next, at 2:36 a.m., Officer Dunk came to the kitchen where Officer Miles and Mr. Harper-Grant were. Mr. Harper-Grant identified two phones that were there as belonging to him.

[121] Officers Miles and Dunk took Mr. Harper-Grant and his phones to the lobby of the building. Mr. Harper-Grant was not sure which officer spoke to him about rights to counsel on the way down to the lobby. At 2:50 a.m., they turned him over to Officers Sapsford and Michaelides, who took him to 53 Division. Officer Miles went to 53 Division in his cruiser. They planned to call counsel for him at 53 Division.

[122] Officer Miles agreed that "no matter – even if … you had Dunding's number … he wouldn't have been able to call from the apartment". He had to wait until he was at the Division to call.

[123] Officer Michaelides said that he and Officer Sapsford took Mr. Harper-Grant from the apartment to 53 Division. They took custody of him from other officers at 2:50 a.m. The Crown said that the description of the person that they took into custody would be important in final submissions. Officer Michaelides described him as male, approximately 23 years old, black skin, approximately six foot, three to five inches tall, and 200 – 220 pounds. He had black "cornrow of hair", brown eyes. He was unshaven. He wore a multi-colored hoodie shirt, which was white, black and red. He had a stud earring in each ear. He had two rings, one on each hand. He wore black track pants, grey socks and black flip-flops.

[124] He was calm, cooperative and did not complain about anything.

[125] They left for 53 Division at 2:52 a.m. They arrived at 2:55 a.m. He did not remember if they gave Mr. Harper-Grant his rights to counsel when they booked him into the station. After he was booked in, they took him to the crime investigation bureau to strip search him. The strip search lasted five minutes.

[126] Next, they put him in an interrogation room for the other officers in the case to take over. Officer Michaelides said that Mr. Harper-Grant had been in his custody from the time that he took him at the apartment building until they put him in the interrogation room. He did not make any threats, promises or inducements to Mr. Harper-Grant. Nor did anyone else in presence. Other than to give him instructions, he did not recall him or his partner having any conversation with Mr. Harper-Grant during the time that he was with them.

[127] Officer Miles arrived at 53 Division at 3:10 a.m. He did not know what happened between 3:10 a.m. and 3:20 a.m., but at 3:20 a.m. he called duty counsel. Officer Miles put Mr. Harper-Grant on the line to duty counsel at 3:27 a.m. He did not say how long Mr. Harper-Grant spoke to duty counsel, but at 3:39 a.m. they were in the video room with him. He appeared satisfied with duty counsel's advice. He did not complain about it. But Officer Miles did not ask him if he was satisfied with duty counsel's advice.

[128] Officer Miles did not know if anyone tried to call "Ms. Dunding". Mr. Harper-Grant did not ask to speak to her. Nor did he ask to talk to "my own lawyer or another lawyer". Officer Miles never told him that he could speak to "Dunding". Nor did he give Mr. Harper-Grant access to the lawyer's directory.

[129] Officer Miles did not make any threats, promises or inducements to Mr. Harper-Grant. Nor did any other officer.

[130] Mr. Harper-Grant did not provide a statement on video.

[131] At 4:42 a.m., Officer Miles advised Mr. Harper-Grant of all the charges that they laid against him.

[132] Mr. Harper-Grant asked to speak to his mother and to his girlfriend. He gave them their names and phone numbers. Officer Miles called one of them at 4:45 a.m. and left a message. He called the other one at 4:48 a.m. and left a message at 5:00 a.m.

[133] One of them called back and Officer Miles let Mr. Harper-Grant speak to her.

[134] That was the evidence for the Crown.

Defence Evidence

[135] The defence started by calling Ms. Antea Anderson. She has been in a relationship with Mr. Harper-Grant for six years. They have a child who is two years old. Ms. Anderson and Mr. Harper-Grant do not live together. She lives with her parents and their child.

[136] The day before the day in question, Ms. Anderson was at a party in the same AirBnB with Mr. Harper-Grant. She estimates that there were about 20 persons there.

[137] She and Mr. Harper-Grant left the party at about 3:00 a.m. He drove her home because their daughter was there. Before they went to the party, they arranged with her mother to look after her.

[138] The next day, she and Mr. Harper-Grant went to another party in the same AirBnB. Mr. Harper-Grant picked her up at home and they took their child to Mr. Harper-Grant's mother's home so that she could watch her. Then, he took her to the apartment. It was between 4:00 p.m. and 4:30 p.m.

[139] Ms. Anderson had something to eat and then took a nap. She was very tired because their child was small and was a lot of work.

[140] She remembered waking up when the police entered the apartment. She and Chelsie, the woman who was having the party, were on the bed. The police banged on the door and yelled "Get the fuck on the floor"! They were "mad and angry". They pointed "guns to my face". She got on the floor. They put handcuffs on her. Then they "brought me up and they searched me". They took her phone. She was scared. She did not know what was happening.

[141] After they searched her, they took her and Chelsie to the living room. Mr. Harper-Grant and others were in the living room when they got there. They all had handcuffs on. The women were scared and panicking. They were asking what was happening. Some were crying. Ms. Anderson was asking what was happening, too.

[142] Judging by the way the police were handling them they seemed angry. They were telling them to "Shut the fuck up"! This made her feel scared and angry.

[143] She heard the police talking amongst themselves about finding a gun. They took Ms. Anderson and the others to a bedroom. The women were panicking. Some cried. They were all in handcuffs. She does not remember one of the officers addressing the group before they took them to the bedroom. Nor did she remember an officer telling them that they were going to be detained for possession of a firearm. She agreed with the Crown's suggestion that it was possible that an officer said that, but that she "had other things going on to remember".

[144] She did not remember an officer telling them while they were in the living room that they could contact a lawyer. But it is possible that one said that and she just cannot remember. However, when the Crown suggested to her that in the living room, "the officer also read to you a 1-800 number from his notebook – well from his memory, as he was talking to you", she said that she had a distinctive memory that this did not happen.

[145] In any case, neither she or Mr. Harper-Grant asked to speak to a lawyer while they were in the living room.

[146] Ms. Anderson felt uncomfortable in the bedroom. They were all "squished up on the bed". The detainees "seemed mad". The women were still panicking. At first, the police would not let them use the washroom. Thirty minutes later, they let them go to the washroom.

[147] When they were in the bedroom officers spoke to them in a "back and forth" manner. One officer told them that they had found a gun. He told them that someone needed to say whose it was or they were all going to jail. He was a tall, white officer. He wore a vest.

[148] He told them that they could call a lawyer. That was all he said. He did not give them any more information regarding a lawyer. He did not give them the 1-800 number for duty counsel. Ms. Anderson wanted to speak to a lawyer but she was too scared to tell the police. She did not know that she had the choice to call a lawyer because of the way the police were behaving. They "looked mad, so I didn't want to ask them no questions".

[149] In addition to her other emotions, Ms. Anderson felt sad, too. She was getting her daughter the next day and the police told them that they were "all going down for the crime – the gun, if nobody talks up". They said that they were getting a big bus to take them to jail. They told them that if they have kids, they would not be able to see them. She was "worried about my daughter – to get my daughter. She was at Shelly's house [Mr. Harper-Grant's mother]. So I was just worrying about my daughter".

[150] The tall, white officer left the bedroom and another officer came to the front door of the bedroom. He told them to "Own up to the gun". The police said this about three times. The women were saying that someone had to "own up for this gun". The gist of what he said was that if the culprit owned up to owning the gun, the police would not charge the rest of them.

[151] Then, while seated on the bed, Mr. Harper-Grant said, "It's mine". She had never seen him with a gun. As far as she knew, he did not have a gun that day. He had never said anything about having a gun. He would have told her if he had a firearm.

[152] She did not remember if Mr. Harper-Grant told the persons in the bedroom that "You guys can fill my canteen?"

[153] The police took him out of the bedroom. She did not remember if he said anything else while he was in the bedroom. She did not see him again that day.

[154] At this point, she had been in the bedroom for more than one hour. About 45 minutes after they took Mr. Harper-Grant away, they brought the remaining occupants to the living room and asked them questions individually while they were still in handcuffs.

[155] The officer that questioned her did not say anything about a lawyer. Nor did he tell her that she did not have to give a statement or that she could leave if she wanted to. He seemed "kind of mad" so she did not ask him any questions about anything.

[156] After she gave her statement, they took her back to the bedroom. She waited about 30 to 40 minutes until the remaining persons gave their statements. She remained in handcuffs during this time.

[157] Then, the police took off the handcuffs and told them that they could go home.

[158] Ms. Anderson never asked Mr. Harper-Grant why he said that the gun was his. She did not know why she did not ask him. She said that she only spoke to him once about the incident because she wanted to forget about it. When she was asked to be a witness, she talked to him about this, but they did not discuss what her evidence would be.

[159] Regarding Mr. Harper-Grant's shoes, she did not remember what kind of shoes he wears, but she would expect him to wear running shoes. She would be surprised if he wore slippers when he came to pick her up. He had shoes on when the police took him out of the bedroom. As far as she knows he never took them off. He wears black Nike shoes. She said that the shoes in exhibit 23 look like Mr. Harper-Grant's shoes. She thinks that he wears size 11.

[160] She considers Mr. Harper-Grant to be an honest person that would not lie to the police. He owns up to what he does.

[161] Mr. Harper-Grant testified on all aspects of the case: the Charter application, the voluntariness voir dire regarding his statement, and the trial proper.

[162] He is 24 years old. On the day of the incident he was 23 years old. He confirmed Ms. Anderson's evidence about their relationship and their daughter, who was seven or eight months old on the day in question.

[163] Chelsie, the woman who rented the AirBnB, is a close family friend. Mr. Harper-Grant went to both parties at the apartment: Friday and Saturday night. On Friday, there were between 30-40 persons there. He did not know all the persons, but he knew most of them.

[164] On Friday, he and Ms. Anderson left the party between 3:00 a.m. and 4:00 a.m. He drove her home. Then he went home.

[165] On Saturday, he went to the apartment for another party. He knew everyone that was there. He stayed at the party for about 30 minutes. Then he went to Square One mall with two of the persons at the party. They spent some time there and then went to Moxie's at Dixon Road and Carlingview Road.

[166] When they left there, they went to his house "real quick" so that he could change his shoes. He admits that the shoes in the photographs that the police took are his shoes.

[167] He had a pair of flip flops at the AirBnB because his shoes hurt his feet so he wears the flip flops in the apartment.

[168] He returned to the apartment at "probably nine or ten". Not much was going on. People were "watching Netflix and just chillin out …" Neither he or Ms. Anderson drank any alcohol. He smoked marijuana.

[169] He was standing in the living room when he heard three loud bangs coming from the front door area. There was a pause of about 20 seconds and then he heard screaming: "Toronto Police, get the fuck on the floor"! They said this twice. Then he saw black uniforms and a big black gun. He got on the floor. Then the police put handcuffs on him. He thought that these officers were the ETF. He was scared and confused as were the other party goers, who kept asking what was going on.

[170] Next, the officers from the GGTF came into the room. They said that they had a search warrant. The officers seemed angry when they spoke. They spoke with a very stern voice. Then they searched the occupants of the apartment. They searched him as he was lying on the floor. They took both of his phones and his house keys.

[171] Then the police sat him up on the floor against the counter that divides the kitchen from the living room. He stayed there for about 30 minutes. Then they moved him onto a futon chair in the living room.

[172] When the police had brought everyone into the living room Detective Stolf told them that they had a search warrant for a firearm and that they were all detained. He did not remember the exact words that the officer used. He did not remember if he said anything about lawyers, or anything else that he said.

[173] Next, the police moved everyone to a bedroom. They were all "bunched up". Some sat, some stood. He was sitting on the bed at the far side of the room. He was still cuffed. It was "pretty hot" in the room. It was getting hotter as they sat there. He felt "confused and mad". The handcuffs were hurting him. His shoulders were hurting.

[174] Everyone in the bedroom was angry and confused. They were asking Officer Racette why they were there and why were they handcuffed and in the bedroom. It "was getting pretty, like heated in there …" Officer Racette was going in and out of the bedroom. Officer Dunk was standing at the door.

[175] Then Officer Racette and Officer Dunk came into the bedroom. Officer Racette said that he had one question for them: "whose firearm is that in the kitchen"? Then amongst the women there was an "outburst, like screaming and like, just like crazy". They were very confused. No one knew what he was talking about. In cross-examination, he said that "They was more so screaming than anything else. I would say, like loud talking".

[176] Officer Racette told them that they were all under arrest and that they had the right to call a lawyer. While he was giving them this information the women were saying things; the men "were just there". Mr. Harper-Grant "thought he was going to, like go into the lawyer thing" so he was nodding his head in hopes of calling his lawyer, Ms. Hillary Dudding. But then Officer Racette left the room without saying anything more. Mr. Harper-Grant said that "him saying the thing about the lawyer didn't seem real" so he did not think that he could have asked him to call his mother who knew his lawyer's phone number.

[177] Officer Racette did not say anything about a "free lawyer", duty counsel or a 1-800 number. Nor did the tell them when they would be able to call a lawyer or where they would be able to call a lawyer. It seemed as if he just said these things to just say them.

[178] Mr. Harper-Grant wanted to call a lawyer then because he did not know what was happening, so calling a lawyer would be the best thing to do.

[179] Officer Dunk came into the room after Officer Racette left. He tried to answer the women's questions about what was happening. Some of the persons in the bedroom told Officer Dunk that the gun did not belong to any of them. Officer Dunk told them that someone had to own up to it or they would all go to jail. This caused another outburst. More yelling.

[180] Officer Dunk asked Mr. Harper-Grant if any of the persons had children. Some of the women said that they did. Officer Dunk told them that they would have to find alternate child care arrangements because they would not be able to pick up their children.

[181] One of the women told him that they had to go to work. One said that she had to give back her parents' car. Officer Dunk told them that she would have to find another way for their mother to get her car because they were all going to jail.

[182] These conversations lasted for two to three minutes, then Officer Dunk left the room. Mr. Harper-Grant said that he never said anything about calling a lawyer, so he did not ask him to call his mother who had his lawyer's phone number.

[183] After approximately 40 to 45 minutes, Officers Racette and Dunk came back to the bedroom intermittently to check up on them. Whenever the detainees asked Officer Dunk questions, he told them that if someone did not admit to owning the gun, they were all going to jail.

[184] The firearm did not belong to Mr. Harper-Grant. He had not seen it, nor did he know that it was in the apartment until the police said that they had found it. But he got up and told Officer Dunk that it was his and to take him in. He said this,

… in the heat of the moment, like – I guess the words he was saying, like really got to me. Like, the whole – like, if somebody doesn't own up to this, like we're all going to jail. And then, like I just thought about my daughter and my girlfriend, 'cause we had to pick her up in the morning .... So, if me and my girl were both in jail, like nobody would have been able to pick her up at all.

[185] Although the child was with his mother she had to go to work. If they did not show up to get her, he did not think that his mother would be able to call into her work to try to get the day off in order to stay with the child. He was afraid that she would lose her job.

[186] At one point he said that he also lied so that his friends could go home. Later, he said that he "wasn't really necessarily thinking about my friends, more so thinking about my girlfriend and my child".

[187] He mentioned the "canteen" because he thought that he would be in jail for days. He was worried about what he would eat. This would be his first time being in jail. He knew what a canteen was because he had put money in his brother's canteen before.

[188] After Mr. Harper-Grant said this, Officer Dunk did not tell him that he had the right to remain silent, or that he had the right to call a lawyer. He took him out of the bedroom and turned him over to Officer Miles.

[189] Officer Miles took him to sit in a chair in the living room. He asked him where they found the firearm and what colour it was. Mr. Harper-Grant just told him that it was his, just take him in. He denied telling Officer Miles that the firearm was brown and that it was in the kitchen cupboard.

[190] Officer Miles did not tell Mr. Harper-Grant that he had the right to call a lawyer, or about his right to silence before he asked him these questions. He just started asking questions.

[191] After a certain time, Officer Miles asked him if there was a lawyer that he would like to call. He told him that he wanted to call a lawyer with the last name of "Dunding". Officer Miles wrote this name down.

[192] Next, Officer Miles asked Mr. Harper-Grant which phones on the kitchen counter belonged to him. He pointed them out and asked if he (Officer Miles) could take his house keys to his girlfriend. He saw the police put the phones in a bag. He did not see them after that. Had he been allowed, he would have used his phone to call his mother to get the number of a lawyer to call.

[193] The police asked him if he wanted to wear his shoes. He said that he did not. The laces are tied in a certain way. If they were taken out, he would not be able to re-tie them the same way. He hoped that one of his friends would see the shoes and take them for him.

[194] Throughout his time in the apartment with the police he did not feel as if he could ask for things that he wanted. He said that from the time that they entered the apartment, they were "giving demands". He was afraid to ask them anything. He is "from, like a area where you don't challenge the police". He said that "…I – like, watch people, I guess. Tried to demand things [from the police] and it did not work out for them … I've seen them get beat up and arrested". He said that he was in his friend's house once when it was raided. The police kicked him in the face "for just looking at one of the officers". He did not want to have a similar experience.

[195] In addition, Mr. Harper-Grant repeated numerous times that due to the circumstances and the way that the police were acting that he did not think that he was able to make any type of demand or request of the police officers.

[196] After five or ten minutes, Officers Miles and Dunk took Mr. Harper-Grant downstairs. He sat in the lobby for about ten minutes. Then, other officers came to pick him up and take him to the police station.

[197] After he completed the booking-in process the police put him in a room where they strip searched him. When they finished the search, they left him in the room. A little later, he believes that it was Officer Dunk who came to tell him that they could not find the lawyer that he mentioned. He asked him if he knew of another spelling for the name. Mr. Harper-Grant told him that he did not. Officer Dunk said that he would try again.

[198] Next, Officer Miles came to the room. He asked him if he wanted to speak to duty counsel. Mr. Harper-Grant said that he did. The police took him to another room where he spoke to duty counsel. After he finished, they did not ask him if he was satisfied with his conversation with duty counsel. Nor did they ask him if he wanted to speak to Ms. "Dunding". They took him to another room where Officer Dunk and Officer Miles asked him to give a video statement. He refused.

[199] They took him back to the first room in which they put him. They asked him if he wanted to make a phone call. He told them that he did, so they let him. After he made the call they put him in a holding cell to wait to go to court.

[200] Next, the defence called Ms. Shakia Hall. She has known Mr. Harper-Grant for about three years.

[201] She had just arrived at the party when the ETF busted down the door and raided the apartment. The officers told them to "get the fuck on the floor". They had their guns out. They were aggressive, rough and swearing. Everyone obeyed their orders.

[202] Once they were on the ground the officers put handcuffs on them. Once they were handcuffed, the officers moved them about the floor with their feet. One of them stepped on Ms. Hall's hair. When they looked up at the officers, they told them to keep their heads on the floor.

[203] Then the officers got them up and sat them on a couch. Everyone was confused and shocked.

[204] Ms. Hall did not remember the police telling them what was happening or saying anything about a lawyer until they moved them to the bedroom. They asked them their names and addresses. The officers did not tell them that they did not have to answer their questions.

[205] They were in the living room for about one hour. Then, the police moved them to a bedroom. She said that they were in the bedroom for about three hours. The police were being rough with them. They were swearing at them. Telling them to be quiet. Other than this the police did not speak to the persons in the bedroom. She was handcuffed during the whole time. She did not sit down. Her arms hurt because she was handcuffed to the back.

[206] After a while, one of the officers came to the room and told them that they found a gun. Everyone was "frantic, screaming". They all said that it was not theirs. The officer said that he was going to get a van for them if no one confessed to owning the gun. He told them that they would not be able to go to America or see their children. He said that they were all going to jail. She said that she had to go to work at 6:00 a.m. A short officer told her that she would not be able to go if no one confessed to owing the gun. She did not recall any of the detainees saying that whoever owned the gun should say it was theirs.

[207] She did not remember an officer saying anything about a free lawyer or about a 1-800 number for a free lawyer. In examination-in-chief, she said that she did not remember an officer saying anything about a lawyer, but it was possible that he did. In cross-examination, she said that she would have remembered had he said that they had the right to call a lawyer and had given them the 1-800 number. But she also admitted that it was possible that an officer said these things and that she just does not remember. No one asked her if she understood that she could call a lawyer.

[208] Two or three officers were outside the room talking amongst themselves saying things indirectly to the persons in the bedroom. They made comments about how they would not be able to leave the country, go to New York and other such things. From these comments she understood that if no one confessed to owing the firearm they would not be able to travel or see their children because they would be in jail.

[209] Finally, Mr. Harper-Grant stood up and said that it was his gun. He told the persons in the room "you guys better run the canteen …" Then the police took him out of the room.

[210] Afterwards, the police took them out into the living room and questioned them. They did not tell them that they did not have to answer their questions. She thought that if she did not give a statement the police would not let her go. They did not caution them or ask them if they knew that they could call a lawyer or give them this option. She did not remember anyone saying that they wanted to call a lawyer.

[211] After they all gave their statements, the police told them that they could leave.

[212] That was all the evidence.

Analysis

Did the Crown Prove Beyond a Reasonable Doubt That Mr. Harper-Grant Possessed the Firearm?

[213] The Crown relies on the two statements that Mr. Harper-Grant made to the police to prove beyond a reasonable doubt that he possessed the firearm. Without the statements, there is no evidence that links Mr. Harper-Grant to the firearm.

[214] The first statement is the one that Mr. Harper-Grant made in the bedroom in which he said that the firearm was his.

[215] The second statement is the one that he allegedly made to Officer Miles regarding the colour and location of the firearm.

Voluntariness of Mr. Harper-Grant's Statements

[216] The Crown must prove beyond a reasonable doubt that Mr. Harper-Grant made the statements voluntarily. The Crown submits that voluntariness is not an issue because "there are no allegations of threats, promises, or inducements were made such that Harper-Grant's will was overborne". Therefore, he restricted his submissions to the Charter application. However, some of his submissions on the Charter application apply equally to the issue of voluntariness and to the truthfulness of the statements. I will consider them in this light.

[217] The defence contests the voluntariness of both statements. Therefore, I will deal with this issue.

The Statement in the Bedroom

[218] The context in which Mr. Harper-Grant gave the statement is important. He and all the occupants of the apartment had just been the subjects of a violent, dynamic entry, by the ETF, meaning that the police did not announce their presence and used a ram to get through the door and gain entry to the apartment.

[219] They came in with guns drawn and yelling at them to get on the floor. They were all put in handcuffs. There was much confusion and fear amongst the occupants.

[220] After the ETF secured the apartment and the occupants, they turned them over to the GGTF who started to move the detainees around the apartment as they searched it. The detainees were huddled in a small bedroom, still confused and scared. They were asking what was happening. Ms. Anderson said that they were all "squished up on the bed".

[221] Mr. Harper-Grant described the bedroom conditions as "pretty hot". They were "all bunched up". It was getting hotter as they sat there. The handcuffs hurt him. His shoulders were hurting, too.

[222] All the officers testified that they did not make any threats, promises or inducements to the detainees. Nor did they hear any officer do so.

[223] The defence witnesses told a different story.

[224] Ms. Anderson said that the GGTF officers acted as if they were angry. They repeatedly told the detainees that someone had to admit to owning the firearm. One or more of the officers said that if no one did, they would all go to jail. They were going to get a big bus to take them to jail. They would not be able to see their children.

[225] Ms. Anderson said that the police said about three times to "own up to the gun". She said that the gist of what the police said was that if someone owned up to the gun they would not charge the rest of them.

[226] Mr. Harper-Grant agreed with Ms. Anderson that Officer Dunk told them that someone had to own up to the gun or they would all go to jail. Mr. Harper-Grant said that this caused an outburst and yelling amongst the detainees. Mr. Harper-Grant said that Officer Dunk told them that if they had children, they would have to make alternate child care arrangements because they would not be able to pick up their children.

[227] Whenever the detainees asked Officer Dunk questions, he told them that they were all going to jail if someone did not admit to owning the firearm.

[228] Mr. Harper-Grant said that "in the heat of the moment" he lied and said that the firearm belonged to him. He said that what Officer Dunk told them about everyone going to jail if no one admitted that the firearm was theirs "really got to me".

[229] He was concerned with his girlfriend and their daughter. If they were both in jail there would be no one to pick up their daughter. The child was with his mother, but she had to go to work. He was afraid that if she could not go to work because of having to watch their child, she might lose her job.

[230] Based on this evidence and all the circumstances, the defence argues that Officer Dunk induced Mr. Harper-Grant to make the statement.

[231] The Collins English Dictionary online, states that " If you induce someone to do something, you persuade or influence them to do it".

[232] The online Merriam Webster Dictionary states that to induce is " to move by persuasion or influence".

[233] I also considered whether Officer Dunk's words could be a threat to the detainees, which included Mr. Harper-Grant. One of the three principle definitions of "threat" in the online Merriam Webster Dictionary is " an indication of something impending".

[234] Taking all of this into consideration, I conclude that the Crown did not prove beyond a reasonable doubt that Mr. Harper-Grant gave the statement voluntarily. There are two reasons for this conclusion: (1) I find that Officer Dunk induced Mr. Harper-Grant to make his statement, (2) I find that Officer Dunk's words were a threat that caused Mr. Harper-Grant to make his statement.

Disposition Regarding the Voir Dire on the Voluntariness of Mr. Harper-Grant's Statement

[235] Based on all the above, my ruling on the voir dire concerning the voluntariness of Mr. Harper-Grant's statement is that the statement was not voluntary because (1) it was induced by Officer Dunk, and (2) Mr. Harper-Grant gave it in response to Officer Dunk's threat that all of the detainees would go to jail if someone did not admit that they owned the firearm. Consequently, I exclude the statement from the evidence.

If I Am Wrong About Voluntariness

[236] If I am wrong regarding my analysis concerning voluntariness, the statement would be included as evidence. In that case, I find that I have a reasonable doubt regarding the truthfulness of the statement. Mr. Harper-Grant's reasons for giving the statement raises a reasonable doubt in my mind regarding whether he was being truthful.

[237] The Crown argued that Ms. Anderson's evidence that Mr. Harper-Grant would not lie to protect her shows that the statement was true. I do not agree that in these circumstances her evidence that Mr. Harper-Grant was telling the truth when he said that the firearm was his tends to prove that his statement was true. The general tenor of her evidence was that she did not believe that the firearm was his. In any case, she may think that he would not lie to protect her, but she could be wrong. There is no reason to believe that her evidence in this regard is beyond question.

[238] The Crown also argued that Mr. Harper-Grant's reason for lying about owning the firearm did not make sense. He stated,

Mr. Harper-Grant would have you believe that he was not giving an honest confession because his daughter needs a ride home to her mother's house. It does not make sense given that the family could have called Uber, Lyft, a taxi, a friend, or a bus. It also does not make sense that his mother would lose her job in the event of an emergency? The only reasonable inference is that he tried to do the right thing and confessed that he had knowledge and control of the firearm.

[239] The Crown did not ask either Mr. Harper-Grant or Ms. Anderson about these alternative means of transporting their daughter. Therefore, they did not have the opportunity to address this issue.

[240] Regarding Mr. Harper-Grant's mother's employment, I do not have sufficient evidence to find that it does not make sense that she would lose her job in this situation. I cannot draw this conclusion from the evidence before me.

[241] The Crown argued that the fact that Mr. Harper-Grant's shoes were found on the kitchen floor close to the cupboard where the police found the firearm, links him to the firearm. I disagree that the mere location of his shoes in this place links him to the firearm.

[242] Even when I consider the location of the shoes in the context of all the other evidence, I am not persuaded beyond a reasonable doubt that the shoes in the kitchen provide a link between Mr. Harper-Grant and the firearm. I note that there is evidence that the shoes were probably moved around by the police.

The Statement That Mr. Harper-Grant Allegedly Made to Officer Miles Regarding the Colour and Location of the Firearm

[243] Officer Miles testified that in order to satisfy himself that Mr. Harper-Grant was telling the truth about it being his gun, he took him to the kitchen and asked him: "If it's your gun, where was it and what does it look like?" He said that Mr. Harper-Grant answered, "It's the brown one in the cupboard". Officer Miles testified that the gun was not in the kitchen at this time.

[244] Mr. Harper-Grant denied that he said this to Officer Miles. He testified that when Officer Miles asked him about the firearm, he just told him that it was his and to just take him in.

[245] This is a circumstance of one person's word against another's. No one else heard this conversation.

[246] The Crown argued that Mr. Harper-Grant would "have you believe that D.C. Miles fabricated his notes to say [that] Harper-Grant told him the gun was in the cupboard".

[247] This comes close to reducing the matter to a credibility contest. It would be an error for me to consider it as such. In matters of credibility I am guided by D. W. v. The Queen,

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[248] In Nadeau v. The Queen, the Supreme Court of Canada said that, "The accused benefits from any reasonable doubt at the outset…moreover, the jury does not have to choose between two versions [of a set of events].

[249] In R. v. Nimchuk, the Ontario Court of Appeal said that, "if reasonable doubt existed in view of conflicting testimony, as to where exactly the truth lay, it would of course, require an acquittal."

[250] Mr. Harper-Grant testified that in answer to Officer Miles's questions about the location and colour of the firearm he told him that it was his and to just take him. I find that this tends to conform with his evidence that he lied when he said that the firearm was his. Since he was lying, he would not know the details about the colour of the firearm or its location.

[251] The Crown maintained that Mr. Harper-Grant lies when it is convenient for him. It was a convenient lie to say that the firearm was his because it caused the release of his girlfriend who could then go get their child. Therefore, I should not believe his testimony that his statement about the firearm being his was false, and that he did not tell Officer Miles that the firearm was in the cupboard and that it was brown, because now he is lying to get acquitted.

[252] Mr. Harper-Grant gave a good reason for lying about the firearm being his. And naturally, he wants me to believe his evidence so that he can be acquitted. That does not mean that he is lying under oath, however. Every accused witness wants to be believed. Otherwise, why would they testify? The fact of wanting to be believed cannot be the test for whether they are lying; all the circumstances must be considered. I also consider that Mr. Harper-Grant was not under oath when he said that the firearm was his.

[253] After considering all the evidence and this jurisprudence, I find that Mr. Harper-Grant's testimony raises a reasonable doubt in my mind regarding whether he told Officer Miles that the firearm was brown and that it was in the cupboard. He might have said that, but I am not convinced beyond a reasonable doubt that he did. Therefore, based on this evidence, I cannot make a finding that he said this to Officer Miles.

Summary of Findings Regarding the Statements

The Statement in the Bedroom About the Firearm Being His

[254] I find that the Crown did not prove beyond a reasonable doubt that Mr. Harper-Grant's statement that the firearm was his was made voluntarily. Therefore, I exclude it from the evidence.

[255] If I am wrong in my analysis regarding voluntariness, I have a reasonable doubt that the statement is true.

[256] Therefore, either the statement is excluded and does not form part of the evidence against Mr. Harper-Grant, or it is included and forms part of the evidence, but I am not persuaded beyond a reasonable doubt that it is true.

[257] In either case, it is not evidence that proves beyond a reasonable doubt that Mr. Harper-Grant possessed the firearm.

The Statement to Officer Miles About the Location and Colour of the Firearm

[258] I am not convinced beyond a reasonable doubt that Mr. Harper-Grant told Officer Miles that the firearm was in the cupboard and that it was brown.

[259] Therefore, the Crown cannot use Officer Miles's evidence to inculpate Mr. Harper-Grant.

Disposition on the Trial Proper

[260] There is no evidence but the above two statements that link the firearm to Mr. Harper-Grant beyond a reasonable doubt. All the charges depend on this connection. Based on my findings regarding the two statements, I found that the Crown did not prove beyond a reasonable doubt that Mr. Harper-Grant was in possession of the firearm.

[261] Consequently, since all the charges are linked to him being in possession of the firearm, I have a reasonable doubt that he is guilty of all the charges.

[262] Therefore, I find him not guilty of all the charges.

Did the Police Breach Mr. Harper-Grant's Rights Under s. 10 (b) of the Charter?

[263] As a result of my finding on the trial proper, it is not necessary that I make a finding regarding whether the police breached Mr. Harper-Grant's rights under s. 10 (b) of the Charter. Therefore, I do not make a finding in this regard.

Released: February 24, 2020

Signed: Justice J. W. Bovard