DATE: 2012-03-07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RONEIL SALMON, JEROME TURNER. and AKEEM HARRIS

Patrick Travers and David Tice, for the Crown

Royland Moriah, for Roneil Salmon

Marco Sciarra, for Jerome Turner

Jeff Hershberg, for Akeem Harris

HEARD:

January: 9-13, 16-18, 23-27, 31,

February 1-3, 15, 2012.

mcCOMBS J.

RULING—STAY OF PROCEEDINGS, ADMISSIBILITY OF STATEMENTS, AND VALIDITY OF SEARCH WARRANTS

INTRODUCTION

[1] The three accused face a 110-count indictment. The charges relate mainly to their alleged commission of thirty-two armed robberies, of mostly gas stations and some convenience stores, across the GTA over a two-and-a-half month period between December 16, 2008 and March 9, 2009. Mr. Salmon, Mr. Turner, and Mr. Harris were teenagers at the time of their arrests and had virtually no prior involvement with police.

[2] The Crown’s case consists mainly of statements of the accused and physical evidence seized either incidental to arrest, or under search warrants. The arrests were complete by 5:30 p.m., but between eight and nine hours passed before the videotaped statements were begun.

[3] The statements and the physical evidence obtained incidental to arrest and under the search warrants constitute the core evidence in the case against the three accused men.

[4] On the voir dire to determine the issues I address below, I heard evidence from twenty police officers and the three accused.

[5] The police say they acted professionally and appropriately, with respect for the rights of the accused. The accused on the other hand allege a pattern of police abuse of power and of police brutality and seek a stay of proceedings. In the alternative, they resist the admissibility of the statements and the physical evidence.

[6] In these reasons, I reject the allegations of police brutality and abuse of power and make the following findings:

• The application for a stay of proceedings is dismissed.
• The arrests were lawful;
• The warrantless seizures of physical evidence, whether incidental to or subsequent to arrest, were lawful;
• The application to quash the search warrants is dismissed;
• The statements made by each of the accused, both on and off video, have not been proved beyond a reasonable doubt to have been made voluntarily and are inadmissible under the common-law rule.

OVERVIEW

[7] Each robbery was committed in much the same way, with two or three knife-wielding masked robbers entering the outlet, in some cases with an accomplice remaining outside as lookout or getaway driver. They terrorized the clerks, taking cash from tills and sometimes the tills themselves as well as other easily-accessible items; and leaving quickly.

[8] By late-December, the Metro Toronto Police Service (“MTPS”) Hold-up Squad (“HUS”) had decided the robberies were being committed by the same individuals. They dubbed them the “gas station bandits”. HUS caused bulletins to be transmitted within the MTPS alerting its members about the rash of robberies.

[9] By March 2, 2009, the number of robberies committed by the gas station bandits had reached thirty-two, an average of roughly three per week. The police had no suspects. From victim interviews and surveillance videos, they believed the robberies were likely being committed by young black men brandishing long knives and often a meat cleaver, wearing masks and gloves; wearing sometimes distinctive clothing and carrying knapsacks or laptop bags (one of which had a distinctive orange stripe); and that the getaway vehicles were either a small black car, perhaps a Honda, or on some occasions possibly a grey or silver Chrysler Neon.

[10] On March 9, officers patrolling in south Etobicoke approached four young black males loitering in a laneway behaving as if a drug deal was in progress. They fled when they saw police but the three accused were arrested after a foot pursuit. The fourth suspect escaped. The evidence seized incidental to or located shortly after the arrests along the route of the foot pursuit included a long knife, a meat cleaver, a balaclava and a ski mask. As well, a car key attached to a remote device used to open a car’s doors was retrieved from the accused Turner and seized for investigative purposes. Two vehicles, one registered to Turner, and the other to Harris, were later found parked side-by-side near the scene of the initial pursuit. A “plain view” inspection of the contents of the vehicles revealed various items later referred to in the application for search warrants for the two cars and the three residences of the accused.

[11] What initially had been thought to be a possible street-level drug transaction had quickly escalated to weapons charges, then to a single robbery charge, then to a belief that the accused might be the gas station bandits. At 6:45 p.m., about an hour after the accused were brought to 22 Division, a senior officer called the holdup squad to advise them of the arrests.

[12] Detectives Gallant, and Abdel-Malik were among the HUS officers on duty that night. The officers who had been assigned the gas station bandits case, Detectives Watt, Belanger and Clark, were all off-duty and at home. Gallant ensured that they were all notified. Gallant and Abdel-Malik left in separate cars and arrived in the area of the arrests of Turner and Harris, near where the cars had been located, at around 7:45 p.m. Officers Watt, Belanger and Clark went first to the HUS office where they met at around 8:00 to pick up the file. They left for 22 Division about 15 minutes later, arriving at 8:47.

[13] The video statements were taken in separate interviews conducted by six HUS officers, two for each interview. By the time the statements were taken, the three accused had been under arrest for between eight and nine hours. Salmon’s interview commenced at 2:14 a.m., and ended at 4:01 a.m. Turner’s interview commenced at 1:47 a.m., and ended at 3:41. Harris’s interview commenced at 2:25 a.m. and ended at 3:02 a.m.

[14] Although their residences were under police surveillance by about 1:00 a.m., the search warrants were not delivered to the scene until 4:30 a.m.

[15] Detective Clark, who prepared the information to obtain (“ITO”) the search warrants, had been informed of the arrests at 7:15 p.m. After being briefed at 22 Division by Detective Gallant of HUS, he was ready by 9:45 to begin preparing the ITO. He completed the ITO about four hours later, then had to drive over thirty kilometers across the city to 54 Division to see a justice of the peace and obtain authorization for the issuance of the warrants. He arrived at 2:18 and the search warrants were issued at 2:50 a.m. Then Clark drove the thirty kilometers back to 22 Division, arriving at 3:40. He made copies of the search warrants, then drove to Brampton, arriving at the target residences at about 4:30 a.m.

[16] The events leading up to the arrests until the taking of the statements and the issuance of the search warrants have been the focus of this voir dire. The police versions of events and those of the accused are diametrically opposed.

POSITIONS OF THE PARTIES

(a) The accused

[17] The accused apply for a stay of proceedings, alleging that their rights under sections 7, 8, 9, and 10 of the Charter were intentionally and systematically violated. They claim that they were arbitrarily detained, unlawfully arrested, and repeatedly denied their rights to counsel.

[18] Further, they claim that they were repeatedly violently assaulted, threatened and intimidated, initially by the arresting officers, and later and more aggressively, by hold-up squad investigators.

[19] They claim that statements allegedly made by them that were not recorded on videotape were either fabricated or obtained in violation of their Charter rights. Further they claim that the off-video statements allegedly made have not been proved to have been made voluntarily. They also claim that their video statements were provided as a result of the police assaults, threats, and other Charter violations and moreover have not been proved to have been made voluntarily.

[20] They claim that the warrantless searches and seizures incident to arrest were made in violation of their s. 8 Charter rights. They claim that the search warrants that were issued and executed on two motor vehicles and three residences were obtained through intentionally false and misleading information and material omissions in the ITO.

[21] They claim that the conduct of the police was so egregious that the only appropriate remedy is a stay of proceedings under the authority of s. 24(1) of the Charter.

[22] In the alternative, they argue that the evidence obtained, whether in the form of statements made or items seized, should be excluded under s. 24(2) of the Charter.

(b) The Crown

[23] The Crown argues that the claims made by the three accused are demonstrably false, and the testimony of the twenty police officers was truthful and demonstrates that the police acted responsibly, and in a manner that respected the accused’s Charter rights.

[24] The Crown asserts that the arrests were lawful, the searches incidental to arrest were lawful, and the seizure of various items of evidence found in the area were also lawful. The accused were properly informed of their rights to counsel immediately upon their arrest and on numerous subsequent occasions. As the investigation unfolded, they were appropriately informed of their increased jeopardy in a timely manner and again given their rights to counsel.

[25] The Crown asserts that the police decision not to permit calls by the accused until the premises to be searched under warrant had first been secured was lawful and appropriate in the circumstances. Further, the Crown submits that the accused were not diligent in asserting their right to call a lawyer and eventually expressly chose not to assert that right. The Crown asserts that the HUS officers testified truthfully that if any of the accused had been diligent in asserting their right to speak to counsel, they would have immediately ceased questioning and advised them that their calls would be delayed until their residences were secured and the search warrants obtained.

[26] In short, the Crown asserts that the accused each chose to make statements to police while fully informed and aware of their right to remain silent and to speak to counsel if they chose to do so. Their statements were voluntary and not elicited in a manner that violated any of their Charter rights.

[27] The Crown asserts that although there were some inaccuracies and omissions in the ITO, the affiant acted in god faith, and the deficiencies in the ITO are of no consequence in the determination of whether the validity of the search warrants should be affirmed.

The Issues

[28] The issues raised by counsel are:

i. Is a stay of proceedings called for?

ii. Were the arrests lawful?

iii. Has the Crown proved beyond a reasonable doubt that the statements were made voluntarily?

iv. Were the accused deprived of their right to counsel under s. 10 (a) and (b) of the Charter?

v. Were their statements obtained in a manner that violated their rights under the Charter?

vi. Were the accused’s rights against unreasonable search and seizure under s. 8 of the Charter violated?

vii. If there were violations of the accused’s Charter rights, what if any remedy is appropriate?

DISCUSSION OF THE EVIDENCE

[29] On the view I take of the evidence and the law, three core conclusions have determined the outcome of the voir dire:

1. The accused have not established on a balance of probabilities that police misconduct mandates the extreme remedy of a stay of proceedings.

2. The statements have not been proved beyond a reasonable doubt to have been made voluntarily and must be excluded under the common-law voluntariness rule.

3. The physical evidence was not obtained in a manner that violated the Charter, and is admissible in evidence at trial.

[30] I will discuss what I view to be the important evidence of the witnesses and then explain the reasons for my conclusions concerning the credibility of the witnesses and my findings of fact. I will then turn to a discussion of the impact of my conclusions on the issues that determine the outcome of this voir dire.

Evidence of the TAVIS officers and the officers from 22 Division

(a) The TAVIS Officers—the foot pursuit, the arrests of Turner and Harris, the seizures of a knife, balaclava and car key from Turner, a neoprene mask worn by Harris, and a meat cleaver that had been discarded by the fourth suspect who escaped arrest.

[31] TAVIS (the Toronto Anti-Violence Intervention Strategy), is a component of MTPS. Its officers are deployed in at-risk areas of the city to assist and support local Divisions in the prevention and investigation of violent crime. On March 9, 2009, two unmarked TAVIS vehicles, each occupied by two uniformed constables, were patrolling south-west Etobicoke, an area within 22 Division of MTPS.

[32] Shortly after 5:00 p.m. on March 9, 2009, while patrolling Lakeshore Blvd. near 28th street, TAVIS officers Robert Astolfo and Rachel Saliba saw four young black men behaving in a suspicious manner. One was seen walking along Lakeshore Blvd., then entering a laneway. He was walking with an “awkward gait”, as if he was concealing something in his pants. Another was standing at the entrance to the laneway looking back and forth as if on lookout. As the officers moved closer, they could see the man with the awkward gait and two others further down the laneway behaving in a manner consistent with a hand-to-hand drug transaction. Using their mobile radios, they “voiced out” for backup assistance from another TAVIS unit they knew to be in the area. They then exited their vehicle and approached the laneway with the intention of investigating. Officer Astolfo was the first to approach. The first suspect to see him looked surprised. Astolfo shouted “Stop! Police!” a couple of times. One of the males yelled “Run!”. A foot chase ensued over fences and through backyards. The chase involved TAVIS officers Astolfo and Saliba and the two officers from the TAVIS backup unit, officers Hillary Allen and Kevin Neill, who had positioned themselves near the rear of the laneway in order to intercept the suspects if they were to flee.

[33] The chase ended with the arrests of the three accused. The fourth suspect got away.

[34] Officer Allen testified that while she was pursuing the fourth suspect, he rounded a corner and was briefly out of her sight. She heard a loud “slam, slam, slam”. The sounds alarmed her, and in her words, she had no idea what she was getting herself into. She drew her firearm, slowed down, rounded the corner and issued a police challenge to the fleeing suspect. He did not comply and within a second was up and over a “quite tall” fence.

[35] Realizing there was no way she could get over the fence, officer Allen abandoned her chase of the fourth suspect. Almost immediately, a citizen approached to ask if she was okay. At the same time, she noticed three large green recycling bins and thought they were the likely source of the slamming sound she heard. She investigated and saw a large meat cleaver and green do-rag at the bottom of one of the bins.

[36] A second citizen yelled from the street, conveying to officer Allen that her partner needed help. She asked the first citizen to keep an eye on the bin containing the meat cleaver and the do-rag, while she ran to help her partner, officer Kevin Neill. Later, after things had been brought under control and the two suspects under arrest had been handed over to 22 Division officers, officer Allen returned to the bin and retrieved the meat cleaver and do-rag.

[37] Officer Neill had arrested Turner and Harris at gunpoint. They were face-down on the ground when officer Allen arrived. Only moments had passed since the chase had begun.

[38] Officer Neill testified that during his pursuit of the two suspects who turned out to be Turner and Harris, he saw the blade of a knife protruding from Turner’s left front pants pocket. He drew his gun and ordered him to the ground. Neill testified that the second suspect (Harris) came over the fence almost immediately. He was also ordered to the ground and arrested.

[39] Turner was wearing what looked like a black toque, but on closer inspection, it turned out to be a balaclava. Harris had a grey neoprene ski mask around his neck, where it could easily have been pulled up to cover his face from the top of his nose down.

[40] There was considerable testimony and cross-examination about whether Officer Saliba had deliberately dropped or pushed Harris into muddy water. There is no dispute that Harris fell into a muddy flower bed when he was being lifted up while handcuffed. Officer Saliba testified that Harris slipped and fell and that she nearly fell on top of him. She helped him up immediately, asked if he was okay, and he said “yeah”. Her version of events was corroborated by other officers and is at odds with Harris’s testimony that he was assaulted by officer Saliba who pushed him into a mud puddle.

[41] Salmon, the third suspect to be arrested, had initially eluded police during the foot pursuit, but as a result of a radio transmission to other officers, he was arrested within a few minutes a kilometer or two away. Although he had been seen wearing a black jacket and carrying a knapsack, at the time of his arrest the black jacket and knapsack had been discarded, and he was in short sleeves. A knapsack was later found discarded along the route where Salmon had fled. Contained in the knapsack were papers relating to a friend of Salmon’s.

[42] As might be expected, there was confusion during the early stages of the investigation. The first officer thought they had a possible drug deal. Other officers, on learning of the knife and the meat cleaver, thought a weapons arrest was more appropriate. Others, learning about the balaclava and the neoprene face mask, concluded that robbery was the appropriate charge.

[43] The evidence of the TAVIS officers establishes that within a few minutes, things had escalated from what initially had been intended to be a relatively routine investigative detention of a possible drug deal, to a foot chase through back yards and over fences, to the discovery of weapons, the gunpoint arrests of two suspects, and another arrested some distance away. While there were some minor inconsistencies in the accounts of the TAVIS officers, they were to be expected given the rapid and intense unfolding of events.

(b) The 22 Division Officers

i. Officers Gomez and McDonald and the alleged statement by Turner

[44] Officers Gomez and McDonald had responded to the arrest scene and were tasked with taking custody of Turner and taking him to 22 Division. Gomez testified that Turner kicked him while he was being escorted in handcuffs to the scout car. He testified that he “grounded him” in what he called a “controlled takedown” which led to Turner being face-down on the ground and being informed that he was under arrest for assault police. Gomez testified that he brought Turner to his feet, placed him in the scout car, advised him that he was under arrest for carrying a concealed weapon, weapons dangerous, and assault police, and read him his rights from the back of his memo book.

[45] Officer Gomez testified that while en route to 22 Division with his partner Officer McDonald driving, he had conversation with Turner. Gomez testified that with what he understood about Turner’s arrest, including the finding of the knife, the balaclava and the meat cleaver, and what he knew about the gas station bandits case, he thought Turner had been preparing to commit a robbery. He told him that he had a reasonable belief about the robbery and that he may have committed robberies in the past. He said that Turner made an initial response, following which Gomez cautioned him again, this time for robbery, by reading from the back of his memo book. Gomez testified that he then questioned Turner further and Turner made incriminating statements. The admissibility of those statements is one of the issues I have been asked to decide.

[46] Officers Gomez and McDonald both testified that Turner was complaining about his handcuffs being too tight during the ride to 22 Division. McDonald confirmed Gomez’s testimony about questioning Turner concerning his involvement in robberies but had made no entries in his memo book concerning the most inculpatory portions of Turner’s responses and had no recollection of the statements attributed to Turner by Gomez, other than what he had written in his notes. Moreover, although Officer McDonald testified that he had an “independent recollection” of Gomez cautioning Turner twice on the ride to 22 Division, his notes made reference to only one caution.

ii. Officer Gomez and the seizure of Turner’s car keys

[47] Turner’s key was found in his pocket by officer Gomez who placed it in Turner’s knapsack along with the knife Neill had seen in his pocket. When Turner was paraded on video at 22 Division, Gomez advised the officer in charge that he intended to seize the car key for investigative purposes. Turner emphatically did not want his car keys taken. I mention Turner’s objection to the seizure of his car keys because he argues that he had a reasonable expectation of privacy in the location of his car, and that the police were not entitled to seize his car keys for the purpose of investigation. I will return to this issue when I discuss my reasons for rejecting Turner’s argument.

[48] The exchange between Turner and Gomez about the seizure of the car keys for investigative purposes was as follows:

Turner: why the car keys?

Gomez: sorry?

Turner: why the car keys? It’s not illegal to have car keys

Gomez: well we’ll conduct the investigation for that, ok

Turner: you wanna conduct the investigation you asked me what the car keys are for and what they belong to

Gomez: well we’ll discuss it in the detective’s office

Turner: you don’t need to hold on to the keys…you’re not going to talk there.

[49] In light of my conclusion that the statements of the accused have not been proven to be voluntary and are therefore inadmissible, I will not discuss in detail the evidence of the TAVIS and 22 Division officers concerning compliance with their duty to caution the accused concerning their rights to counsel under s.10 of the Charter. Their collective evidence was that the three accused were repeatedly appropriately cautioned, that they understood their jeopardy and their rights, and that they expressed a desire to speak to counsel.

iii. Officers Ho and Gillen—the transfer of Harris to 22 Division

[50] The evidence of officers Ho and Gillen, who transferred Harris to 22 Division, was essentially uncontroversial. Cross-examination of these officers focused mainly on their alleged failure to ensure that Harris had been properly cautioned and was aware of his right to counsel. In light of my conclusion on the voluntariness issue, it is not necessary to examine the right to counsel issue further.

iv. Officer Reid—the arrest of Mr. Salmon and the seizure of relevant evidence

[51] Officer Reid testified that he received a radio transmission at 5:11 concerning a foot pursuit near 32nd and Lakeshore. He learned that there were suspects not yet arrested and he was given general descriptions of the outstanding suspects. He drove to the area south of Lakeshore near 38th, then headed back in a westerly direction along Lake Promenade. He saw a young man fitting the general description of the suspects, running west ahead of him. He did not have a jacket on and was not carrying or wearing a knapsack. As he approached, he observed that the young man was panting and appeared to have been running for a period of time. He had dirt on his clothing. He veered into the front yard of one of the residences. Officer Reid called out to him, and he turned toward the officer. He claimed that a taxi had dropped him off nearby and said that he was running from a dog. He identified himself when asked to do so. Officer Reid noted minor cuts to his hands and to his right elbow. Reid voiced out that he had a man under investigation, and told Salmon he was under investigative detention, that there was a pursuit in the area and that he more or less matched the description. At 5:15 he placed him in handcuffs, conducted a pat-down search, and placed him in his scout car. Officer Hillary Allen arrived at about that time and confirmed that Salmon was one of the males she had been pursuing. Officer Reid advised Salmon that he was now under arrest for robbery and advised him of his rights to counsel. Salmon said he wanted to call duty counsel when he got to the station. He declined to say anything in answer to the charge. When he arrived at the station, Salmon again confirmed that he wanted to speak to a lawyer.

v. Discovery of the cars belonging to Turner and Harris

[52] Plain clothes officers Sauve and Villaflor were detailed to look for the Chrysler Neon owned by Turner. At 7:11, they were informed by radio that Turner’s car was a silver grey Neon, and were provided its licence plate number. At 7:15 Sauve and Villaflor found the Neon parked beside a black Honda in a church parking lot near the initial pursuit area. After locating the vehicle, they confirmed by activating the remote that the key seized from Turner was for the Neon. They denied that they opened the door or entered the vehicle. The black Honda licence plate was checked and it was confirmed to be registered to Harris. The cars were kept under observation by police. At about 8:15, HUS Detectives Gallant and Abdel-Malik looked through the windows of the cars, probably using a flashlight, and made notes of what they could see inside. They denied opening the doors or entering the cars. The cars were ordered sealed and towed to Forensic Identification Services at 2050 Jane St. in North Toronto.

vi. The strip searches and the seizure of clothing

[53] After being paraded on video at 22 Division, each accused was placed in a separate interview room. After a short wait, 22 Division officers conducted strip searches of each of them. Some of their clothing was seized and placed in containers outside the interview rooms. Strip searches in these circumstances are normal police procedure. There was nothing in the evidence to give me concern that the officers conducting the searches had acted unprofessionally.

Evidence of the Holdup Squad Officers

a) Overview of roles of the HUS officers

[54] HUS officers involved in the investigation who gave evidence on the voir dire included detectives Gallant and Abdel-Malik, the first HUS officers to arrive at the scene of the arrests of Turner and Harris, who looked through the windows of the cars registered to Turner and Harris. Bellanger, Watts and Clark had been off-duty and were called in because they had been assigned the gas station bandits case. It would be their responsibility to oversee the investigation. Although Gallant and Abdel-Malik had already gathered considerable information about the arrests and initial investigation, it was agreed that Bellanger and Watts would conduct a more detailed debriefing with TAVIS and 22 Division officers. It was agreed that search warrants should be obtained for the residences of the accused and the two cars. Clark was to be the affiant and would begin to prepare the ITO.

[55] The HUS had other investigations ongoing that evening and needed assistance. Their supervisors, Detective Sergeants Monaghan and Getty, agreed to help. They arrived at 22 Division at around 11:00, and were briefed at 11:50 by Bellanger and Gallant. It was decided that the officers would divide the responsibilities of interviewing the accused. Watts and Bellanger would interview Salmon, Gallant and Abdel-Malik would interview Turner, and Monaghan and Getty would interview Harris. Clark would continue working on the ITO.

b) The “brief visits” by Detective Belanger

[56] Detective Belanger testified that shortly after arriving at 22 Division at 8:47, he briefly checked in on each of the three accused. He testified that he informed them he was from the holdup squad, that there was a major investigation under way, and that it would take a while. He told them that they would be given an opportunity to contact a lawyer and offered them food and water. He told them that if they needed anything, just knock on the door.

c) Gallant’s briefing of Bellanger, Watts and Clark

[57] Detective Gallant testified that he arrived at 22 Division at 8:55. Ten minutes later he began briefing Bellanger, Watts and Clark about the information he had gathered from TAVIS and 22 Division officers. The briefing was concluded around 9:45.

d) The debriefing with TAVIS officers and officers from 22 Division

[58] Between 10:55 p.m. and 12:05 a.m., Bellanger and Watts conducted a formal debriefing of the various officers involved. There were 14 officers present and each was asked to describe their involvement and provide their input.

e) The “pre-interviews”

[59] The evidence shows that the practice of HUS officers is to conduct a “pre-interview” with suspects prior to the taking of statements. During the pre-interviews, HUS officers do not use video or audio recording devices. It has never been their practice to do so and they view the use of recording devices as an impediment to their investigations. As I will discuss below, the practice of conducting pre-interviews without the use of recording devices is problematic.

[60] The stated purpose of the pre-interview is to advise the suspects of the nature of the investigation, to ensure they know their rights, to determine whether they wish to speak to counsel, and whether they are prepared to provide a statement. The HUS officers all swore that the pre-interview is a preliminary step, and its purpose is neither to elicit a confession nor to persuade suspects to waive their right to counsel.

[61] In this case, each suspect’s pre-interview was conducted by two different HUS investigators. All of the HUS investigators who conducted the pre-interviews swore that each suspect made inculpatory statements when told they were being investigated for the robberies. All of the HUS investigators conducting pre-interviews testified that each suspect was told that he had the right to call a lawyer, that each waived his right to do so, and that each voluntarily agreed to give a statement on video. The HUS investigators all swore that the interviews were conducted professionally, with no threats, promises or inducements. They also denied engaging in police brutality or any other improper form of oppression.

[62] The pre-interview with Salmon was conducted by Detectives Watts and Belanger between 10:20 p.m. and 10:28 p.m.; the pre-interview with Turner was conducted by Detectives Gallant and Abdel-Malik between 12:24 a.m. and 12:48 a.m.; and the pre-interview with Harris was conducted by Detective Sergeants Monaghan and Getty between 1:11a.m. and 1:39 a.m.

f) The videotaped interviews

[63] Salmon’s videotaped interview with Detectives Watts and Bellanger began almost four hours after the completion of his pre-interview. It lasted from 2:14 a.m. until 4:01 a.m.

[64] Turner’s videotaped interview with Detectives Gallant and Abdel-Malik began about an hour after the completion of his pre-interview. It lasted from 1:47 a.m. to 3:41 a.m.

[65] Harris’s videotaped interview with Detective Sergeants Monaghan and Getty began just under an hour after the completion of his pre-interview. It lasted from 2:25 a.m. to 3:02 a.m.

[66] DVD’s of the interviews were introduced in evidence and I have viewed each of them. Portions of them were played during the voir dire. Transcripts of the interviews were also filed as exhibits.

[67] In each video, the officers conduct themselves calmly and professionally. The accused are placed under oath, told of their rights, advise that they do not want to speak to a lawyer, and agree to be interviewed on video. As well, the accused each agree that they had previously been interviewed off-camera and that they had said they did not want to speak to a lawyer and wanted to give an interview on video. Salmon, Turner and Harris appear relaxed and in no apparent physical or significant psychological discomfort.

[68] There is nothing on the videos that would suggest that there had been any impropriety, either during the video interview or at earlier stages of the investigation.

Testimony of the Accused

[69] Because, as I will explain shortly, I have concluded that the statements must be excluded under the common law voluntariness rule, the relevance of the accuseds’ allegations of assault and police brutality relates to their application for a stay of proceedings due to the alleged pattern of police impropriety and violent assault. The police brutality allegations are also relevant to the motion to quash the search warrants because it has been alleged that the affiant, Detective Clark, was aware of the assaults by the HUS officers and purposely excluded from the ITO any reference to the assaults or the taking of statements from the accused.

[70] The onus of establishing the Charter violations, whether in support of a stay of proceedings, or quashing the search warrants, rests with the defence. I am not asked to determine whether the evidence raises a reasonable doubt in my mind concerning the alleged Charter breaches. The burden of proof is the balance of probabilities.

[71] If I had concluded that I was satisfied on a balance of probabilities that the accused were beaten and abused as they allege, I would not have hesitated to grant a stay of proceedings. A stay is the appropriate remedy where a pattern of police brutality has been established. See R. v. Tran, 2010 ONCA 471, [2010] O.J. No. 2785 (Ont. C.A.).

[72] The evidence of Salmon, Turner and Harris was not persuasive. With beatings of the severity they allege, it is impossible to believe that they would not have been injured. Yet there is no medical or other evidence to support their claims. As well, their appearance and demeanour on the videos is incompatible with their allegations. They allege repeated violent and terrifying beatings at the hands of the officers, yet on the videos, which I have examined closely, they display no signs of physical pain or discomfort. 22 Division was humming with activity that evening. There were dozens of officers and staff around. HUS officers were not regular visitors at 22 Division and did not know most of the officers who were there. It is reasonable to be skeptical as to whether they would risk their reputations and their careers by behaving as alleged within such close proximity to other officers they did not know.

[73] Salmon was wearing a sleeveless tank top when he was arrested on Lake Promenade. He claimed not to have been wearing a jacket that day and denied discarding one during the chase. His assertion that he was not wearing a jacket is not plausible. It was March 9 and the weather was seasonal. Harris in his evidence had offered the explanation for his wearing a neoprene mask around his neck that it was cold and windy that day.

[74] Salmon was not wearing a black knapsack when he was arrested. He had been seen wearing one during the foot pursuit. Officer Saliba had retrieved a black Jensport knapsack on 31st st. along the route taken by Salmon as he ran away. The bag contained papers belonging to Davien Hutton. Although Davien Hutton was a friend of Salmon’s, Salmon persisted in denying that he had discarded the knapsack. His evidence on this issue was not believable.

[75] Turner testified that the police could not have seen the items in his car by looking through the window because most of what they claimed to have seen had been in the trunk. The clear implication was that the police had conducted a warrantless search of the trunk and selected items to plant in plain view inside the car. If that happened, it is curious that the black laptop with the distinctive orange stripe that figured in many of the robberies would be left in the trunk where it was later discovered when the search warrant was executed. If the police had wanted to move items from the trunk to the interior of the car to bolster their “plain view” allegations, the distinctive laptop bag with the orange stripe would have been an obvious choice. Turner’s evidence on the issue of the contents in plain view inside the car was not believable.

[76] Harris claimed to have a specific memory of what items were in the trunk of his Honda. Yet when asked in cross-examination whether he recalled whether an officer had threatened to shoot him if he ran, he replied that he couldn’t remember because “it was a long time ago and I didn’t take notes”. It is implausible that Harris would recall the contents of the interior of his car, yet be unable to recall whether a police officer threatened to shoot him the day of his arrest.

[77] In contrast to the testimony of the accused, I found the testimony of the four TAVIS officers, nine 22 Division officers and seven HUS officers to be credible and consistent. I prefer their testimony over the testimony of the accused.

[78] The application for a stay of proceedings is dismissed.

Were the Accused Arbitrarily Detained? Were the Arrests Lawful?

[79] The accused assert that they were arbitrarily detained and unlawfully arrested in violation of their s. 9 Charter rights. This argument rests on two footings. The first is that the police lied about what they saw and had no basis to conduct an investigative detention. Moreover, when the police ordered them to stop, the accused were under no lawful duty to do so, and they were entitled to leave. The mere fact that they ran did not provide the police with grounds to commence a high-intensity foot chase that ended in the violent arrest of Turner and Harris, and the later arrest of Mr. Salmon.

[80] I have already dealt with the testimony of the three accused. Their evidence was riddled with inconsistencies, implausibilities and lies. The onus is on them to establish on a balance of probabilities that their Charter rights were breached. There is no basis for accepting their version of events over that of TAVIS officers Astolfo and Saliba, whose evidence was consistent with the other evidence and with the evidence of the other officers. They were not shaken in cross-examination.

[81] The entitlement of the police to conduct a foot pursuit in circumstances such as in this case was definitively established in R. v. Nesbeth 2008 ONCA 579, [2008] O.J. No. 3086 (Ont. C.A.). Based on their observations of the behavior of the three accused and the man who got away, officers Astolfo and Saliba had a reasonable, articulable basis to detain the four men for investigative purposes. When the “Stop! Police!” command was issued, one of the four yelled “Run!’ and they all fled as fast as they could run. The police were entitled to pursue them. With the discovery of the discarded meat cleaver and the knife protruding from Turner’s pocket, the police were obviously entitled to arrest Turner, Harris and later, Salmon.

[82] There were no arbitrary detentions, no unlawful arrests, and no violations of the accused’s s. 9 Charter rights.

Admissibility of Statements—The Law—Voluntariness

[83] As I have indicated, I have concluded that the crown has not met its burden to prove voluntariness of the statements of the accused beyond a reasonable doubt. As my conclusion that the statements must be excluded turns on the common-law voluntariness rule, it is not necessary to determine whether the statements were obtained in violation of the accused’s Charter rights.

[84] However, as I will discuss shortly, the issue of how the accused came to waive their right to counsel and agree to go on video has been a relevant contextual factor in my evaluation of the voluntariness issue. It follows that it is necessary to discuss some relevant Charter issues before turning to my conclusions concerning voluntariness.

(a) The right to counsel—10(b) of the Charter

i. Purpose of 10(b)

[85] Charter s. 10(b) has as its purpose the duty to provide detainees with a chance to be informed of their legal rights and obligations, and most importantly, their right to speak to a lawyer without delay: R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at pp. 1242-43.

ii. Components of s. 10(b)—duty to inform and duty to implement

[86] In R. v. Bartle, (1994) 1994 CanLII 64 (SCC), 92 C.C.C. (3d) 289 (S.C.C.), Lamer C.J.C. reiterated the police duties under Charter s. 10(b) when detaining or arresting individuals as follows (at para. 17) :

• To inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel;
• If a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
• To refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

[87] It can be seen that the first duty is informational, while the second and third are implementation duties.

[88] I have no doubt that the accused were repeatedly informed of their rights to counsel and the informational criterion has been met. I am however concerned about the police conduct concerning their implementation duties.

iii. The Implementation Duties under s. 10(b) of the Charter

[89] The duty of the police to facilitate the implementation components of the right to counsel under s. 10(b) are subject to some limited exceptions.

a. Invocation of the right to call a lawyer

[90] First, the detainees must invoke the right, and second, they must be reasonably diligent in exercising it. Moreover, the 10(b) rights may be waived by the detainee, although the standard for waiver will be very high: Bartle, supra at para. 18.

b. Entitlement to delay implementation of s. 10(b) Charter rights

[91] In the circumstances of this case, the police were entitled to delay implementation of the 10(b) rights because they intended to obtain and execute search warrants and had legitimate concerns about preservation of evidence. Authority to delay implementation of the right to call a lawyer has its roots in R. v. Strachan (1988), 1988 CanLII 25 (SCC), 46 C.C.C. (3d) 479 at 493-4 (S.C.C.), see also R. v. Learning, 2010 ONSC 3816, [2010] O.J. No. 3092 (ONT. S.C.) for a helpful review by Code J. of the principles and authorities.

[92] In this case, as I will discuss later, the lengthy delay from arrest to obtaining and executing the search warrants was unfortunate but perhaps understandable. Until the search warrants were obtained and executed, the police had legitimate concerns about preservation of evidence believed to likely be in the residences of the three accused and the two vehicles that had been located by police. Moreover, a fourth armed suspect had eluded police and was at large. In those circumstances, police were entitled to delay implementation of the accuseds’ right to speak to a lawyer until they had control of the residences and control of people who may be found inside the residences.

c. Police duty to refrain from eliciting evidence during suspension of s. 10(b) rights

[93] Although the police were entitled to suspend the implementation of the accuseds’ 10(b) right to call a lawyer, they remained obligated under the rule in Bartle to refrain from eliciting evidence until their s. 10(b) rights had either been implemented or waived. To elicit evidence from an accused during this period of suspended rights without waiver of those rights would render the 10(b) right ineffective: R. v. Manninen (1987), 1987 CanLII 67 (SCC), 34 C.C.C. (3d) 385 at 392 (S.C.C.).

[94] Unless there was a waiver of the right to counsel, an elicited statement during the suspended period of implementation of the accuseds’ 10(b) rights to counsel constitutes a Charter violation. A finding of a Charter violation of this type not only threatens the admissibility of the initial pre-interview non-video statements, but also potentially taints the subsequent video statements if the court decides that elicitation of the first statements in violation of the Charter was a substantial factor in the provision of the subsequent statements: R. v. Wittwer [2008] S.C.R. 234, at paras. 21-24.

[95] The holdup officers say that they did not conduct the pre-interviews with the intention of eliciting evidence. They say they never conduct pre-interviews on video—that it is not their practice. The stated purpose of the pre-interviews is to explain the extent of the jeopardy the suspect is facing, to determine whether the suspect wishes to speak to counsel, and to determine whether the suspect wishes to make a statement, with a video statement being the preferable method.

[96] The practice of conducting these pre-interviews off-camera leaves the courts with an inadequate record of what is often a meaningful, game-changing process. This case illustrates the problem clearly.

[97] While I am not persuaded on a balance of probabilities that the police violated the Charrter rights of the accused by “eliciting” evidence during the pre-interview, I am left with real concerns about whether the Crown has proved that the statements were made voluntarily beyond a reasonable doubt.

[98] The result of the failure of police to videotape the pre-interview is that there is no independent evidence to assist me in evaluating whether the accuseds’ decisions to change their minds and waive their right to counsel and give videotaped confessions were voluntary in the sense meant by the common law.

Voluntariness—Discussion and Conclusions

The Law

[99] Statements against interest made by accused persons are presumed to be inadmissible. The onus is on the Crown to prove voluntariness beyond a reasonable doubt: Oickle, 2000 SCC 38, [2000] S.C.J. No. 38 at paras. 30, 68; R. v. Hodgson, 1998 CanLII 798 (SCC), [1998] S.C.J. No. 66 at para. 37.

[100] Evaluation of the voluntariness issue is a fact-driven exercise involving consideration of all of the surrounding circumstances. In this case there are a number of factors that give rise to concerns about the voluntariness of the statements. The accused had initially said they wanted to speak to a lawyer. Although they did not diligently pursue that right, their lack of diligence is understandable given their youth and lack of prior police involvement. In any case, pursuit of their right to call a lawyer would have been futile given the police decision to hold calls pending search warrants. Although I have rejected their allegations of police brutality, it is nevertheless true that they were held isolated in custody for many hours. They were strip-searched. Their questioners were seasoned, veteran police officers whose authority over them was absolute. There is no video or audio record of the pre-interviews during which the accused are said to have incriminated themselves, waived their rights to counsel, and voluntarily agreed to give a video confession.

[101] To establish voluntariness, the Crown must provide “a sufficient record of the interaction between the suspect and the police”: R. v. Moore-McFarlane, 2001 CanLII 6363 (ON CA), [2001] O.J. No. 4646 at para. 65 (Ont. C.A.). The evidence of the officers who had contact with the accused will be of considerable assistance in determining whether the statements made by the accused persons were voluntary, but their testimony alone will sometimes not provide a sufficiently complete record to establish voluntariness beyond a reasonable doubt.

[102] I am satisfied on the evidence that had the officers wished to do so, they could easily have conducted the pre-interviews with the use of audio or video technology. There were two video interview rooms available, and Detective Sergeant Monaghan and Getty had little difficulty finding a third video setup with the help of one of the 22 Division sergeants. The failure of HUS officers to record the pre-interviews had nothing to do with unavailability of recording devices and everything to do with the fact that it is not their practice to do so.

[103] In the circumstances of this case, where the HUS officers chose to meet with each of the accused off-camera in circumstances which, whether intentionally or not, may have had the effect of eliciting statements from them when their right to consult counsel was “on hold” because of the pending search warrants, gives rise to a need for heightened scrutiny of the circumstances before a determination can be made that the statements taken have been proved voluntary beyond a reasonable doubt.

[104] I appreciate that it is unrealistic to expect police to videotape every interaction with accused persons. Failure of the police to video-record the interrogation of the accused does not make the accused's statements inadmissible: R. v. Oickle, supra, at para. 46; R. v. Ducharme, 2004 MBCA 29, [2004] M.J. No. 60 , 182 C.C.C. (3d) 243 (Man. C.A.), leave to appeal refused [2004] S.C.C.A. No. 124 (S.C.C.); R. v. Quinn, 2009 BCCA 267, [2009] B.C.J. No. 1168 at para. 96 (B.C.C.A.).

[105] On the other hand, the failure of the police to videotape the pre-interviews, which involved key interactions with hold-up squad officers leaves me with an incomplete record of the circumstances leading to the alleged incriminating statements in the interview rooms, and of the circumstances that led to the accused persons abandoning their initial desire to speak to counsel and agreeing to provide confessions on videotape.

[106] Video-recording is a salutary practice that facilitates a trial judge's task of determining whether the Crown has discharged its heavy burden to prove voluntariness beyond a reasonable doubt: R. v. Moore-McFarlane, supra. Videotaping the pre-interviews would have been of considerable assistance to me in determining whether the Crown has proved that the accuseds’ statements were voluntary. Video recording devices were available at 22 Division, both in the two formal interview rooms, and also in the Detectives Office. Indeed, Detective Sgts. Monaghan and Getty used a portable video device to record the video interview with Harris.

[107] Charron J.A. noted in Moore-McFarlane, at para. 65:

The Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onus may be readily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect. In such cases, it will be a matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has been provided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt. (emphasis added)

In the circumstances of this case, the failure of the police to video record the pre-interview is a significant factor contributing to a reasonable doubt on the issue of voluntariness. This is not the first occasion that concerns about failure to record an accused’s pre-interview have contributed to a reasonable doubt on the issue of the voluntariness of subsequent video statements. See e.g.: R. v. Cameron [2002] O.J. No. 3545 (Ont. S.C.) at paras. 20-30; R. v. Gauvin, [2003] M.J. No. 148 (Man. Q.B.), at paras 54-60; R. v. Badwah [2003] O.J. No. 6183 (Ont. S.C.) at paras. 38-46; R. v. Ross [2007] M.J. No. 171 (Man. Prov. Ct.) at paras. 20-23.

[108] In the case before me, the evidence establishes that:

• the suspects had been in custody for many hours;
• recording facilities were readily available; and
• the police engaged the accused during the critical pre-interview without giving any thought to the importance of making a reliable record of that interview.

[109] The principles and concerns noted by Charron J.A. in Moore-McFarlane apply in this case, and the absence of a recording of the pre-interviews makes their content suspect. The issue of what occurred during the pre-interviews is critical to the determination of the voluntariness of the subsequent video statements provided by the accused.

[110] I conclude that the constellation of relevant factors: the youth of the accused and their lack of prior police involvement, the strip searches, the failure of the police to videotape the pre-interviews, and the long delay in the taking of the videotaped statements, leave me with reasonable doubt as to voluntariness. Accordingly, the statements of the three accused made to the holdup squad officers are not admissible in evidence at the trial.

B. Voluntariness of Turner’s alleged statements to Officer Gomez in the Scout Car en route to 22 Division

[111] The circumstances under which Turner allegedly made the statement to officer Gomez are as follows. He had just been arrested at gunpoint. While being escorted in handcuffs to the scout car, he allegedly kicked officer Gomez who immediately took him to the ground, facedown. He informed Turner that he was now under arrest for assaulting a police officer. He was placed in the scout car and cautioned by Gomez from his notebook for assault police, carrying a concealed weapon and weapons dangerous. Gomez and his partner McDonald left the arrest scene and arrived at 22 Division 22 minutes later. Turner had been complaining that his handcuffs were too tight and were hurting him. Turner’s statements were allegedly made during the drive to 22 Division. The most incriminating content is his statement in which he allegedly responded to a question from Gomez about having robbed convenience stores by saying “no man I never robbed no gas station”, is not found in Gomez’s partner McDonald’s notebook. Moreover, McDonald has no independent recollection of this key incriminating statement. Gomez cautioned Turner again from his notebook for robbery, but it is not clear to me whether the caution came before or after the incriminating statement. Moreover, McDonald shed no light on this aspect.

[112] At this threshold admissibility stage I am not concerned with whether the statement was in fact made, as that is a question for the jury: R. v. Lapointe and Sicotte (1983), 1983 CanLII 3558 (ON CA), 9 C.C.C. (3d) 366 (Ont. C.A.); aff'd (1987) 1987 CanLII 69 (SCC), 35 C.C.C. (3d) 287 (S.C.C.). My role here is to determine whether the evidence establishes beyond a reasonable doubt that the statements, if made, were made voluntarily.

[113] I have concluded that the Crown has not proved voluntariness of the Turner statements beyond a reasonable doubt. As I noted earlier, evaluation of the issue of voluntariness involves consideration of all the circumstances. In the case of Turner, in addition to his youth and lack of meaningful police involvement, he had, within the few minutes preceding his allegedly voluntary statement, been arrested at gunpoint, handcuffed, then taken to the ground and arrested again for assault. His arms were handcuffed tightly behind his back. Although I disbelieve Turner’s version of events, I am left with the fact that the recollection of events as between Officers Gomez and McDonald differ in material ways, and I therefore do not have a complete and consistent record upon which to evaluate the issue of voluntariness. In the circumstances, I have a reasonable doubt and rule that the statements allegedly made to Officer Gomez are inadmissible.

THE SEARCHES AND SEIZURES

(a) The seizure of Turner’s car key and the “search” for the motor vehicles.

[114] Mr. Sciarra argues that Turner’s s. 8 Charter rights were violated when Officer Gomez seized his car keys. He argues that the key was not evidence of a crime and could not be seized incidental to arrest. He submits that Turner asserted a heightened privacy interest in the key when he was paraded at 22 Division as evidenced by his emphatic objection to the seizure of the key. Turner had earlier lied about the location of his car, claiming it was parked in Brampton when in fact it was parked beside Harris’s car very close to where the foot chase began. In Mr. Sciarra’s submission, Turner’s lie about the location of the car shows his heightened privacy interest in its location.

[115] I reject this argument for two reasons. First, police are entitled to seize items incidental to arrest and to retain them in furtherance of an investigation. Police clearly understood that in order to search the car itself, a search warrant would be required. But it is, to say the least, a stretch to suggest that the seizure of a key incidental to arrest, even if it was for the purpose of trying to locate a vehicle that may be associated with crime, is a violation of s. 8 of the Charter. A similar argument was rejected by Bellamy J. in R. v. Mohamed [2008] O.J. No. 3245 (Ont. S.C.). at para. 78.

[116] Officer Gomez was entitled to seize the key because, objectively viewed, there was a reasonable basis for his belief that it may be evidence of a crime. There was no violation of s. 8.

[117] Moreover, both officers who located the motor vehicle testified that they had first been given a description of the vehicle and its licence plate number and were looking around the area where the chase began. Their evidence was that they found Turner’s Neon Chrysler without the use of the key by reference to its model, colour and licence plate number. To confirm it was the correct vehicle, one of the officers pressed the remote, and the car light came on. The car was then locked using the same remote device. Clearly, the car would have been located regardless of whether the key had been seized. Even if there was a technical breach of s 8, it was of no consequence, and any argument to exclude the alleged fruits of the seizure of the key would be doomed to failure.

[118] The argument respecting the seizure of the key fails.

(b) The “plain view” issue—looking into the windows of Turner and Harris’s cars

[119] Mr. Sciarra and Mr. Hershberg argue that the plain view inspection of the vehicles were warrantless searches. They found their arguments on the submission that Turner was arbitrarily detained and that his car key was seized in violation of the Charter. I have already rejected those arguments and in doing so, the foundation for the arguments has collapsed.

[120] The accused also seek an order quashing the search warrants on the basis that the ITO is false and misleading. I turn to that issue now.

The ITO

[121] The principal submission in support of quashing the search warrants is that the affiant acted in bad faith. It is alleged that Officer Clark prepared the ITO with the intent of misleading the authorizing justice by either knowingly including false information, or by omitting evidence of questionable admissibility in order to avoid the risk that reference to improperly obtained evidence would taint the ITO and lead to the quashing of the search warrants.

[122] The secondary submission is that the ITO contained errors and omissions that left a misleading impression of the true circumstances; and that if the true circumstances had been disclosed, a justice could not lawfully have issued the search warrants. The defence says that had the misleading errors and omissions not been made, the ITO would have been so deficient as to be incapable of supporting a conclusion that the search warrants could have been issued.

[123] I will deal with the two submissions in turn.

i. Good Faith of the Affiant Detective Clark

[124] As I noted earlier, Detective Jamie Clark was one of the HUS officers assigned to the gas station bandits case, along with Detectives Watts and Belanger. He knew that he would be the affiant in the event that search warrants would be needed as the case unfolded. To that end, he kept a running log of the occurrences to assist in preparation of the ITO if search warrants were to be sought in the future. He received an unexpected call while off-duty at home at 7:15 p.m. notifying him of the arrests at 22 Division . He went to the HUS offices arriving at 8:00 where he met Watts and Belanger. He left for 22 Division at 8:15 and arrived at 8:47. He was briefed by various officers led by Detective Gallant and was advised of the evidence the police had. By 9:45 he was in a position to begin preparing his affidavit.

[125] It was suggested in cross-examination that Detective Clark acted in bad faith in two main respects. First, it was alleged that because of where he was working in the Division, he had to be aware of the assaults taking place. I have already explained that I am not persuaded that any such assaults occurred. Second, it was alleged that his failure to confirm that the accused were providing video confessions was motivated by a desire to avoid tainting his ITO. It was suggested that he knew the holdup squad officers were using improper police methods in order to obtain statements, and he believed that if he were to include them in the ITO and it later was established that the police had engaged in misconduct, it would invalidate the search warrants he wanted to obtain.

[126] I reject the allegation that Detective Clark acted in bad faith. He was working under pressure; the police had no suspects in the gas station bandits case; he was off-duty and at home when he received the call that led to his working on the ITO into the middle of the night. He had not expected and had no way of foreseeing that a break in the gas station bandits case would come that day. While at first blush it might seem that there was inordinate delay in obtaining the warrants, the delay becomes understandable when the circumstances are examined more closely. Detective Clark had to review all the occurrence reports for the robberies committed between December 18, 2008 and March 2, 2009. He had to examine photographs captured from video cameras located at the scene of some of the robberies. He had to look for and identify items of similarity between the clothing worn and weapons used by the robbers and the items seized that day and observed inside the cars belonging to Turner and Harris. He was working away from his home office in a busy police Division. He was aware that officers were heading out to place the residences under surveillance. He was tired and under considerable stress. Detective Clark did his best to comply with his obligations to ensure that the ITO provides full, fair, and frank disclosure of all relevant information. He did not intentionally mislead the authorizing justice.

[127] Despite the best efforts and good faith of Detective Clark, it is not surprising, given the circumstances, that the ITO contained some inaccuracies and omissions.

[128] I turn now to a discussion of the applicable legal principles and will then discuss the inaccuracies and omissions and explain why I have concluded that they are of no material consequence.

ii. Good Faith Errors and omissions: Applicable Legal Principles

[129] A judge reviewing the validity of a search warrant must first ask whether on the material before the issuing justice, there was any basis to permit the conclusion that the preconditions for issuance of the warrant were met: R. v. Araujo 2000 SCC 65, [2000] 2 S.C.R 992 at paras. 50-51. It is not argued that the ITO could not support the issuance of the search warrants. Instead, it is submitted that the ITO contains material errors whose effect was to overstate the case for issuing the warrants. It is argued that when the erroneous information is stripped away, the ITO does not form a sufficient basis to justify issuance of the warrants.

[130] In R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, Fish J., at paras. 39-44, outlined the law and the approach to be taken by a reviewing court. In the subsequent case of R. v. Campbell, 2011 SCC 32, [2011] S.C.J. No. 32, Charron J. succinctly summarized, at para. 14, the applicable principles outlined in Morelli:

In order to comply with s. 8 of the Charter, prior to conducting a search the police must provide "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search". The question for a reviewing court is "not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence" to permit an issuing justice to authorize the warrant. In conducting this analysis, the reviewing court must exclude erroneous information from the ITO and may have reference to material properly received as "amplification" evidence. The accused bears the burden of demonstrating that the ITO is insufficient. (citations omitted)

[131] Amplification evidence is evidence that corrects minor, good faith errors in the ITO. It cannot be used to circumvent a prior authorization requirement by adding new information that would “retroactively authorize a search that was not initially supported by reasonable and probable grounds”: Morelli, para. 42.

[132] As Fish J. stated in Morelli, at para. 43:

…reviewing courts should resort to amplification evidence of the record before the issuing justice only to correct some minor, technical error in the drafting of their affidavit material so as not to put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made such errors. In all cases the focus is on the information available to the police at the time of the application, rather than information that the police acquired after the original application was made. (emphasis added)

iii. Structure and Contents of the ITO

(a) Detailed descriptions of the robberies

[133] The 52- page ITO begins with 45 pages of detailed descriptions of each of the thirty-two robberies that had been committed between December 16, 2008 and March 1, 2009. The descriptions covered the number of robbers and their general descriptions, the property taken, the methods used, (including knives and in some cases a meat cleaver), the wearing of masks and white gloves (some with a spotted texture), and references to distinctive items often carried or worn by the robbers (including a black bag with a distinctive orange stripe, and what police believed to be a lumberjacket worn inside-out). The information was derived from various sources, including victim and witness interviews, computer data bases, and videos. The ITO indicated that sometimes, in addition to cash from the tills, the robbers stole personal property from the victims, including cellular phones, wallets and laptop computers.

(b) Investigative measures undertaken

[134] The ITO then continues with a four-paragraph description of investigative efforts undertaken by the affiant. Two paragraphs refer to two applications before justices of the peace for production orders directed to service providers Bell, Rogers, and Telus. The ITO explains that the productions had been obtained from the service providers and sent to the “intelligence section” of MTPS for analysis, but the results had not yet been received. The third and fourth paragraphs discuss failed efforts to obtain DNA profiles and/or data bank “hits” for two items, a glove seized from a robbery scene on January 29, 2009, and a coffee cup seized on February 11, 2009.

(c) Information gathered following the arrests

[135] Pages 46 to 50 contain fifteen paragraphs setting out the affiant’s understanding of the relevant events on the day of the suspects’ arrests. The fifteen paragraphs set out details of events leading up to the arrests, including the items seized, the clothing worn by Salmon, Turner and Harris, the seizure of the knife and the meat cleaver, the discovery of Turner’s Chrysler Neon and Harris’s Honda Civic parked directly beside it. The ITO also describes items observed inside the cars such as cellphones, gloves similar to those worn in the robberies, and a lumberjacket visible in Harris’s Honda.

(d) Grounds for issuance of search warrant

[136] Paragraphs 48 to 57 address the grounds for the affiant’s belief in support of the issuance of search warrants for the accuseds’ residences and the two cars. This portion of the ITO concludes with this paragraph:

As a result of the above investigation, and the arrests made March 9th 2009, I believe the arrested parties are the parties responsible for the above spree of robberies across Toronto and York Region. The meat cleaver, the number of suspects, the silver Neon and the Black Honda all ring of a very familiar pattern given the accounts of witness [sic], victims and video from the stores. The arrests made March 9th 2009 show the arrested parties were about to commit another robbery but were interrupted prior to committing it.

iv. Inaccuracies and Omissions in the ITO

[137] The accused submit that the ITO is a mere summary of the robberies, followed by a brief, superficial and inaccurate description of the events, items seized and/or observed, and information gathered on March 9, 2009. As I noted above, the principal submission respecting the validity of the ITO is that the affiant knowingly included false and misleading information and purposely omitted information obtained in violation of the Charter. I have already explained why I reject the claims of bad faith against Detective Clark.

[138] I turn now to a discussion of the purported deficiencies in the ITO.

(a) The meat cleaver

[139] Paragraph 40 of the ITO contains the following statement: “The female officer observed one of the accused throw a meat cleaver into a recycling bin and continued [sic] to run”. Paragraph 41 alleges that the fleeing suspect was later arrested and was “positively identified” as the person who had been seen discarding the meat cleaver.

[140] This information is inaccurate in two respects. First, the person who discarded the meat cleaver was not “seen” discarding it. The pursuing officer, TAVIS constable Allen, had heard the slamming noise of the recycling bin lid, and shortly thereafter, located the meat cleaver in the bin. Second, the person who discarded the meat cleaver was not later arrested. He is the fourth suspect who got away.

[141] However, the inaccuracies are of no consequence to the reliability or adequacy of the ITO. The important aspect of the meat cleaver discovery is that it demonstrates that two of the four suspects had been armed, one with a knife that was recovered on his person, and another with a meat cleaver that had been discarded and quickly discovered during the foot pursuit. Had the ITO described the meat cleaver recovery accurately, the description would easily support its significance in the ITO: that two of the four suspects who fled had been armed with weapons strikingly similar to the weapons used in the robberies under investigation.

(b) The gloves

[142] Paragraph 47 of the ITO states that Turner had been “wearing” white gloves with black spotted texture. Gloves of that description had been found in Turner’s knapsack upon his arrest, but none of the officers could recall seeing any of the suspects wearing gloves. Detective Clark was aware that the gloves had been recovered from Turner, and inferred that he had been seen wearing them. An accurate statement—that white gloves with a black spotted texture had been found in Turner’s possession—would have just as effectively supported the link to the gloves worn in some of the robberies. The inaccuracy does not undermine the ITO and could not have misled the authorizing justice.

(c) The knife

[143] Paragraph 40 of the ITO contains the statement: “[t]he two persons arrested at that time had in their possession a large knife which the officer that had them at gunpoint could see sticking out of their pocket”. The accused argue that this statement is misleading because the use of the word “their” suggests that both Turner and Harris had been in possession of knives, when in fact only one knife was alleged to have been retrieved, and it was allegedly in Turner’s pocket. I do not accept that the statement is even inaccurate, much less misleading. To the contrary, the ITO makes it clear that the reference is to one knife. Although the grammar could have been improved, the authorizing justice could not have been misled into thinking that two knives were recovered.

(d) Video of the robbers using cell phones

[144] Page 15 of the 1TO describes a Petro Canada station robbery on January 14, 2009. The ITO states, at p. 17, that Detective Belanger attended the robbery scene the next day and viewed surveillance video of the robbery and another external video showing the two robbers as they approached the station. The ITO states that Belanger went across the street to an apartment building at 2195 Jane St. and arranged to view surveillance video of the lobby area. The ITO states that “the video shows two suspects, wearing the same clothing, enter the lobby”. The ITO points out that they were looking across the street in the direction of the station, watching for about ten minutes before leaving and walking in the direction of the station immediately prior to committing the robbery. One of the suspects was periodically taking a cell phone out of his pocket and glancing at it, “possibly viewing text messages”.

[145] Later, at p. 49 the ITO links the use of the cell phone observed in the apartment lobby video to the presence of cell phones seen in the cars, and makes the obvious point that robbers often use cell phones to communicate with each other during their crimes. At para. 53, the ITO, with underlining for emphasis, states that “Detective Belanger’s observations of the surveillance video from the lobby of 2195 Jane Street offers proof that these suspects are in fact, in possession of cell phones”.

[146] Detective Clark acknowledged in cross-examine that he knew when he prepared the ITO that the apartment lobby video was no longer available. He agreed that in hindsight it would have been preferable if he had added that the apartment lobby video was no longer available, but at the time he did not consider it important since he knew that Belanger was available to confirm what he had seen on the videotape.

[147] The accused complain that the omission of the fact that the apartment lobby video was no longer available was a significant material omission. I disagree.

[148] In my opinion, the omission of the information that the apartment lobby video was unavailable is immaterial, because inclusion of the information could not have had any impact on the issue of whether the search warrants could be issued.

(e) Omission of statements of accused

[149] The accused also complain about the failure of the ITO to mention the inculpatory statements attributed to Turner by Gomez, and the failure of the affiant to inquire about whether other inculpatory statements had been made by the accused. This argument was primarily based on allegations that the affiant was withholding the information for fear of tainting the ITO with information that had been improperly obtained. I have already found that detective Clark acted in good faith in the preparation of the ITO. I accept his testimony that he simply did not turn his mind to the issue of including any statements of the accused.

(f) Amplification

[150] It is apparent from the foregoing that I regard the deficiencies in the ITO to be minor. The errors and omissions were made in good faith. The correct information was known to the police at the time. Amplification of the record by correcting the minor errors and omissions does not involve the use of information that came to light after the ITO was prepared. This is not a case involving consideration of information obtained by police after the fact, in order to retroactively validate a search warrant that was not initially supported by reasonable and probable grounds. In the circumstances, I conclude the amplification criteria in Morelli and Campbell are met.

(g) Conclusion

[151] The ITO as amplified contains an abundance of credible and reliable evidence to permit an issuing justice to authorize the issuance of the search warrants.

[152] The motion to quash the search warrants is therefore dismissed.

SUMMARY OF CONCLUSIONS

1. The application for a stay of proceedings is dismissed.

2. The statements are inadmissible under the common-law voluntariness rule.

3. The accused were not arbitrarily detained or unlawfully arrested.

4. The seizure of Turner’s keys was lawful and not in violation of s. 8 of the Charter.

5. Looking into the windows of the Turner and Harris vehicles did not constitute a “search” so as to engage s. 8 of the Charter.

6. The motion to quash the search warrants is dismissed.

J. D. McCombs J.

March 7, 2012