ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10677
DATE: 2012/03/26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – DAVID HATCH
J. Spangenberg, for the Crown
D. Crawford and M. Hilliard, for the Accused
HEARD: February 27, 28, 29, March 1 & 2, 2012
Rady J.
RULING
Introduction
[ 1 ] The accused seeks to have his statements to police excluded from evidence for the following reasons:
He was not given his rights to counsel before he was asked by Sergeant Vallee where Ms. Roberts was and was she sleeping.
The statement give to Officers Kukolj and Matthews was not voluntary because it was obtained while he was being detained at gunpoint.
His statements were not voluntary because he was impaired by alcohol consumption. Further, he was suffering from the effects of depression. Put another way, Mr. Hatch lacked an operating mind.
After indicating that he wished to speak to counsel, the London Police impermissibly engaged him in conversations, violating his rights pursuant to s. 10(b) of the charter.
Later statements were tainted by what had occurred during earlier interactions between Mr. Hatch and the London Police Service.
[ 2 ] Mr. Hatch also seeks to have the evidence derived from a computer seized from his place of employment excluded. He disclosed its existence and location during his long interview with Detective Constable Travis and this information formed the basis of the police’s request for a warrant, which was granted. If his statement was improperly obtained, it is submitted that the computer records should be excluded.
[ 3 ] The Crown concedes that the statement given to Sergeant Vallee was not voluntary given the circumstances under which it was obtained, while being arrested and at gunpoint. It does not intend to lead this evidence.
[ 4 ] The events and circumstances leading to the statements being given and what was said are set out below.
Statement at time of arrest – Statement #1
[ 5 ] Officer Hewerdine was the first officer to see Mr. Hatch, as he was returning to the Radisson hotel where he had rented a room. The officer pointed his firearm at him and ordered him to the ground. Mr. Hatch complied. Officer Kukolj asked him if he was Mr. Hatch and when he said he was, the officer arrested him for murder. He did not read him his rights but advised other officers that he had yet to do so.
[ 6 ] Officer Matthews asked Mr. Hatch as he was being arrested at 5:07 p.m.: “Where is the gun?” He responded by saying: “It is up in the room.” Officer Kukolj was then asked: “The handgun is up in the room?” to which he replied: “No, it’s a rifle.”
[ 7 ] Officer Young, Officer O’Brien and Sgt. Vallee took over the arrest. While doing so, Sgt. Vallee asked “Where is she?” to which Mr. Hatch replied “She’s in the bed.” Sgt. Vallee asked “What, is she sleeping?” and Mr. Hatch replied “She’s dead.”
[ 8 ] At 5:09 p.m., the Emergency Response Unit officers entered Room 913 of the Radisson and observed Ms. Roberts lying in the bed. She appeared to be dead.
[ 9 ] At 5:10 p.m., Mr. Hatch was placed in the back of a police cruiser, at which time Officer Young read him his rights to counsel and asked “Do you understand?” to which he responded “Yes, sir.” When asked if he wished to call a lawyer, Mr. Hatch replied “No, I do not.”
[ 10 ] At 5:11 p.m. Officer Young read Mr. Hatch the caution, and asked “Do you understand?” to which he responded “Yes, sir.” He asked to speak to his cousin.
[ 11 ] At 5:24 p.m., Officer Young transported him to London Police headquarters. During this time, Officer Young detected the odour of alcohol coming from Mr. Hatch. Mr. Hatch asked again to speak to his cousin.
Statement at book-in to Sgt. Hicks – Statement #2
[ 12 ] At 5:40 p.m., they arrived at the London Police cells and Mr. Hatch was booked-in by Sgt. Hicks. The booking was audio and videotaped.
[ 13 ] While being booked in, Mr. Hatch admitted to consuming alcohol. He had no visible injuries and did not complain of any medical problems.
[ 14 ] During the book-in process, he advised that he did not wish to speak with a lawyer but he did wish to speak to his cousin. Sgt. Hicks asked if his cousin was a lawyer. Mr. Hatch responded in the negative.
[ 15 ] Sgt. Hicks continued the booking process. He asked “Do you have a firearms licence?” Mr. Hatch said “Yes I do.” When asked “Do you own or have access to firearms?”. He said he did and they were at the hotel on Wellington St. When asked if that was all of his guns, he said “Yes.”
[ 16 ] The videotaped book-in process was shown. Mr. Hatch appears steady on his feet although he is slightly clumsy as he moves to the wall to have his height measured. His speech is clear and coherent and he is appropriately responsive to questions.
... (caselaw text continues exactly as provided) ...
Justice H. A. Rady
Released: March 26, 2012
COURT FILE NO.: 10677
DATE: 2012/03/26
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – DAVID HATCH RULING Rady J.
Released: March 26, 2012