His Majesty the King v. Katie Brittain

ONTARIO COURT OF JUSTICE DATE: May 14, 2024 COURT FILE No.: 23-38200528

BETWEEN:

HIS MAJESTY THE KING

— AND —

KATIE BRITTAIN

Before Justice Angela L. McLeod

For preliminary inquiry April 25, 26, 2024

PETER KOTT....................................................................................... counsel for the Crown JEFF FISHER................................................................................. counsel for the Applicant

McLeod J.:

Overview

[1] It is alleged that Katie Brittain possessed both cocaine and fentanyl, for the purpose of trafficking, on March 30, 2023. A total of 270 grams of fentanyl and 170 grams of cocaine were seized by police.

[2] On March 29, 2023, a resident called police to seek their assistance in removing an unwanted party. When police arrived at the residence, no one was present, or no one at least answered their knock upon the door. The name of the unwanted party was not made known to the police.

[3] On March 30, 2023, a second call to police was made for the same residence, making the same request to remove unwanted parties.

[4] Multiple officers attended the call for service. A knock upon the door was answered by Katie Brittain, who was not a resident of the dwelling. She was known to the officers from previous interactions.

Evidence of the Arrest and Utterance

[5] The evidence of the officers varied and contradicted one another, however, there was evidence that Ms. Brittain was advised that she was going to be arrested for being unlawfully in a dwelling almost immediately upon the officer’s entry into the residence.

[6] One officer testified that he was aware that Ms. Brittain had a warrant out for her arrest, and it was his intention to execute the warrant regardless of the unlawfully in a dwelling allegation.

[7] Yet another officer testified that there was no plan developed as to what would happen once the door was opened. His expectation was that the parties inside would be either ‘trespassed or removed’. He testified that a fellow officer advised Ms. Brittain that the police had permission to remove everyone and that she was not welcome in the residence.

[8] Another officer testified that although Ms. Brittain was arrestable for being unlawfully in a dwelling, the arrest was not made immediately because the police were “giving her a chance to explain or gather her belongings”. Additionally, she was told that she would be arrested if she didn’t leave. The officer could not recall the exact wording that he used.

[9] None of the officers took notes of the conversation, or conversations, that took place between Ms. Brittain and police after they entered the residence. Ms. Brittain was in the residence with police, post arrest for at least 17 minutes.

[10] None of the officers read rights to counsel nor provided caution to Ms. Brittain inside the residence. When she was arrested, removed from the residence and placed inside a police cruiser she was then provided with rights to counsel and cautions.

[11] A male youth, who Ms. Brittain identified as her boyfriend, was also located inside the residence. He too was to be arrested for being unlawfully in a dwelling. He was arrested before Ms. Brittain. Search incident to his arrest (which took place immediately in front of Ms. Brittain) located on his person a large sum of money, organized by denomination, and a clear plastic dime baggy containing a white, powdery crystal substance, suspected to be cocaine.

[12] While the male youth was being arrested, one of the officers who had been standing back stepped forward when he noticed a black backpack on the kitchen floor, slightly unzipped, with 2 inches of a knife sticking out. He decided to pick it up and move it away from the arrest area for officer safety. He testified that when he picked it up, the zippers came apart and he looked down and saw what he believed to be crack cocaine. He placed the backpack on a futon.

[13] He did not tell the other officers what he had seen. He testified that it wasn’t until the male youth was arrested that he then heard Ms. Brittain utter “that’s his bag, these are mine” pointing to the bag that he had picked up and then to other bags on the bed. At that point the officer informed the arresting officers that the parties should also be arrested for possession for the purpose of trafficking. Contained within the black backpack was the fentanyl and cocaine.

[14] One officer testified that when Ms. Brittain was arrested, she “mentioned that she had a couple of backpacks in the room and was looking to collect her belongings”. Another testified, “Katie commented about backpacks in the bedroom, she thought she was being removed and wanted her belongings”. This officer noted that before Ms. Brittain referenced the backpacks, she had been talking to another officer but could not say what was being said between the two during the 1-2 minute conversation. Yet another officer testified that post the arrest of the male youth Ms. Brittain uttered, “those are my bags in the bedroom and that is his bag in the kitchen”. The officer could not say what had prompted her utterance.

[15] The officers did not take note of all of the items within the backpack, only those that they determined had “evidentiary value”. No evidence of personal items or identifying items contained within the backpack was proffered.

Purpose of Preliminary Inquiry

[16] Section 548(1) of the Criminal Code allows a judge conducting a preliminary inquiry to order the accused stand trial or that she or he be discharged. It states:

(1) When all the evidence has been taken by the justice, he shall

(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or

(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.

[17] The primary purpose of a preliminary inquiry is to serve as a screening process, to ensure that trials only occur where there is sufficient evidence (R. v. Russell, 2001 SCC 53).

Role/Function/Jurisdiction of Preliminary Inquiry Justice

[18] The presiding justice must accept as a fact any direct evidence proffered by the Crown. She may not evaluate the credibility or reliability of the source.

[19] The presiding justice must accept as a fact any circumstantial evidence proffered by the Crown. She may not evaluate the credibility or reliability of the source (R. v. Acuri, 2001 SCC 54).

[20] Circumstantial evidence serves to support a conclusion. There is an inferential gap between the evidence proffered and the fact to be established. The presiding justice must weigh this evidence, to a limited degree, in order to assess whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw (Arcuri, supra).

[21] If there is more than one inference to be drawn based on the evidence, the presiding justice must not choose which she prefers, but instead only the inferences that favour the Crown are to be considered (R. v. Sazant, 2004 SCC 77).

[22] The inferences do not need to be compelling or easily drawn in order to be reasonable. The presiding justice must draw any reasonable inference in favour of the Crown, regardless of its strength (R. v. Munoz (2006), 205 C.C.C. (3d) 70 (ONSC)). Inferences must arise from the evidence and cannot be based on conjecture or speculation (Sazant, supra).

Test for Committal

[23] The test for committal is the same as the test applied by a trial judge considering a civil motion for non-suit or a defence motion for a directed verdict (United States v. Shepard, [1977] 2 S.C.R. 1067 (S.C.C.), R. v. Acuri, 2001 SCC 54, [2001] 2 S.C.R. 828 (S.C.C.), R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702 (S.C.C)).

[24] The presiding justice must consider the “whole of the evidence”, when determining whether the Crown has adduced sufficient evidence to meet the test (R. v. DesChamplain, 2004 SCC 76, [2004] 3 S.C.R. 601 (S.C.C.)).

[25] In R. v. Wilson, 2016 ONCA 235, Benotto J.A. stated:

The test is the same whether the evidence is direct or circumstantial. However, with circumstantial evidence, there is an inferential gap between the evidence and the matter to be established. The question becomes whether the elements of the offence to which the Crown has not advanced direct evidence may reasonably be inferred from the circumstantial evidence.

The preliminary inquiry judge must therefore engage in a limited weighing of the evidence to assess whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This does not entail considering whether he or she would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. Rather, the preliminary inquiry judge asks whether the evidence, if believed, could reasonably support an inference of guilt: ​ R. v. Arcuri, 2001 SCC 54.

Any reasonable interpretation or permissible inference from the evidence, beyond conjecture or speculation, is to be resolved in the prosecution's favour. At the preliminary inquiry stage, if more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be drawn: ​ R. v. Sazant, 2004 SCC 77. To weigh competing inferences is to usurp the function of the trier of fact: ​ R. v. Clarke (2002), 159 O.A.C. 221.

Issues

A. The characterization of the utterance and voluntariness.

[26] The Crown submits that Ms. Brittain was not detained nor under arrest at the time that she made the utterance and that it was not in response to any question posed by the police.

[27] The Crown submits that the utterance was spontaneous.

[28] It is clear on the evidence of the officers that Ms. Brittain was at the least detained and most likely under arrest at the time of the utterance.

[29] It is clear on the evidence of the officers that Ms. Brittain was engaged in conversation or questioning with the officers for a number of minutes before her arrest and before the utterance was made. The questioning began the moment that she opened the door post knock by the officers.

[30] There is no evidence of what the officers were or were not saying to her in those minutes or what prompted the utterance.

[31] In all of those circumstances I find that the utterance was not spontaneous. The police intended to either arrest her for being unlawfully in a dwelling or to affect a warrant. If the former, then the questions at the doorway and onward about what she was doing and why she was present were elicited to gather evidence in support of that criminal charge. In either case, Ms. Brittain was a suspect. A suspect who was not cautioned by the police before they began to question her.

[32] As a result, there is prima facie evidence of unfairness and the Crown must discharge it burden to prove beyond a reasonable doubt that the statement was voluntary.

[33] The weight of the absence of a caution is great. As the Supreme Court noted in R. v. Tessier, 2022 SCC 35, at paragraph 79,

At the other end of the spectrum, the vulnerability and legal jeopardy faced by detainees cement the need for a police caution. Fairness commands that they know of their right to counsel and, by extension, of their right to remain silent so that they can make an "informed choice" whether or not to participate in the investigation (I borrow the expression "informed choice" from Singh, at para. 33). The balance courts seek to achieve in applying the confessions rule in this context tilts in favour of protecting the rights of the detained person and of limiting society's interest in the investigation of crime. The weight attached to the absence of a caution in these circumstances, while not determinative of the question of voluntariness owing to the contextual analysis required, will be at the highest end (see Singh, at para. 33).

[34] The absence of a caution is not dispositive. The “Crown can prove that the suspect maintained their ability to exercise a free choice because there were no signs of threats or inducements, oppression, lack of an operating mind or police trickery, that will be sufficient to discharge the Crown's burden that the statement was voluntary and remove the stain brought by the failure to give a caution”. Tessier, supra, para. 89.

[35] The officers all testified that Ms. Brittain appeared to have an operating mind. There is no evidence to the contrary. All of the officers testified that no one made any threats, or inducements to Ms. Brittain.

[36] I cannot find, beyond a reasonable doubt, that the utterance was voluntary. I do not have the context in which the utterance was made, do not know exactly how many officers were asking questions or conversing with Ms. Brittain, and do not know exactly what they said to her in order to determine if the circumstances under which the utterance was made was made in oppressive circumstances or that Ms. Brittain was not otherwise tricked into making the utterance. There simply isn’t any evidence proffered by the Crown in that regard.

[37] In summary, I find that the utterance, identifying which backpack and bag belonged to which party was made when Ms. Brittain was a suspect, was not cautioned and was ultimately not voluntary and thus not admissible.

[38] If I am wrong in that conclusion, I move on to the second issue.

B. The utterance as evidence of knowledge, possession and control.

[39] The Crown submits that an inference can be drawn to support knowledge, possession and control of the fentanyl and cocaine found in the black backpack from the utterance made by Ms. Brittain. That is to say, the Crown submits that when Ms. Brittain uttered, “those are my bags and that is his bag” an inference is available to support that she knew:

(1) The police had looked in the black backpack and seen cocaine. (2) That the black backpack belonged to her, and she was attempting to exculpate herself with the utterance.

[40] There is no evidence that the black backpack was ever in the direct possession of Ms. Brittain. There is no evidence that Ms. Brittain was ever immediately next to the black backpack. The Crown relies completely and wholly on the inference that the utterance identifying the ownership of the backpack is evidence of knowledge, possession and control.

[41] The utterance was made either in the circumstances of Ms. Brittain being removed from the residence or being arrested. It is unclear if the utterance was made while the male youth was being arrested, while he was being searched incident to arrest, during or post the seizure of the large sum of money and the drugs found on his person.

[42] The submission that the identification of the bag was an attempt to exculpate herself from ownership is nothing more than conjecture or speculation. In R. v. Ali, 2016 ONSC 6872, at paragraph 14, the court noted, “[a]s was stated in R. v. Munoz (2006), 86 O.R. (3d) 134 (Ont. S.C.J.), at para 31, " . . . the requirement of reasonable or logical probability is meant to underscore that the drawing of inferences is not a process of subjective imagination, but rather is one of rational explication."

[43] I have engaged in the limited weighing of the evidence and determine that it is not capable of making the inference the Crown submits is possible.

Conclusion

[44] The utterance was not made voluntarily and is not admissible. If I am wrong about that, the utterance is not capable of supporting the inference that Ms. Brittain had knowledge, possession and control over the black backpack and its contents.

[45] There is no evidence of knowledge, possession and control over the fentanyl and the cocaine.

[46] Ms. Brittain is discharged.

Released: May 14, 2024. Signed: Justice Angela L. McLeod