DATE: 20120319

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Byron Sonne

BEFORE: Justice Spies

COUNSEL: Elizabeth Nadeau and Stephen Byrne, for the Crown

Joseph Di Luca, Peter Copeland and Kevin Tilley, for Byron Sonne

HEARD: November 16, 17, 18, 21, 22, and 23, 2011

RULING ON ADMISSIBILITY OF STATEMENTS

Introduction and Issues

1The defendant, Byron Sonne, was interviewed by police on three separate occasions: interviews with two G20 Intelligence Officers; Detectives Shane Hill and Pat Garrow, on the afternoon of June 22, 2010,¹ the day of his arrest; an interview with Detective Tam Bui of the Toronto Police Service (“TPS”) on June 23, 2010; and a second interview with Detective Bui on June 26, 2010. The Crown sought to tender the two statements Mr. Sonne gave to Detective Bui as part of its case.

2On December 12, 2011, I advised counsel and Mr. Sonne that I had concluded that the June 23^rd^ statement was admissible but that a portion of the June 26^th^ statement was not. These are the reasons for my ruling.

3On the day of Mr. Sonne’s arrest, the Crown acknowledges that there was a failure on the part of the police to discharge the implementational duties imposed by s. 10(b) of the Charter, namely the right to counsel, within a reasonable time. As I will come to, Mr. Sonne was in police custody for approximately twelve hours before he had an opportunity to speak to his counsel. The Crown does not seek to rely on the statements provided by Mr. Sonne to Detectives Hill and Garrow at this trial because the information was obtained from Mr. Sonne for intelligence purposes and was not to be used against him. The Crown also concedes that because of assurances given to Mr. Sonne by Detectives Hill and Garrow, that the information they obtained concerning the existence and location of two cottages and the potato guns located at those cottages should never have been used in obtaining search warrants of those cottages. On that basis the Crown acknowledges a violation of Mr. Sonne’s rights pursuant to s. 8 of the Charter as a result of the search of those cottages and the seizure of potato guns from one of those cottages.

4The circumstances surrounding the statements made by Mr. Sonne to Detectives Hill and Garrow must still be considered however, because it is the position of the defendant that the information he provided to them was given in violation of his section 10(b) Charter rights and that his statement was involuntary as a result of a serious police trick. In particular, it is alleged that a police trick utilizing the purported cloak of informer privilege was used by Detectives Hill and Garrow to elicit information from Mr. Sonne and that that trick would rise to the level of shocking the conscience of the community. In this context an argument was advanced that the arrest of Mr. Sonne was a pretext, in order to gain G20 intelligence, and that at least initially, before certain chemicals were found in Mr. Sonne’s home, there was no real intent to pursue the charges that supported the search warrants.

5Although the Crown concedes Detectives Hill and Garrow did not caution Mr. Sonne in any way before they spoke to him, the Crown disputes the Defence submission that there was a further breach of s. 10(b) of the Charter when Detectives Hill and Garrow spoke to Mr. Sonne before he had an opportunity to speak to a lawyer, given they only intended to speak to him for intelligence gathering. In the alternative, it is the position of the Crown that if this court finds the police were required to either allow Mr. Sonne to speak to counsel prior to speaking to these Detectives or make it perfectly clear to him at the outset that they reserved the right to share the information that he gave to them with investigators, notwithstanding that they were not investigating him, that there was a violation of the duty to hold off. As for the alleged trick, the position of the Crown is that there is no air of reality to this theory which was never put to these Detectives when they were cross-examined.

6As for the statements given by Mr. Sonne to Detective Bui, it is alleged by the Defence that the breach of s. 10(b) of the Charter when Detectives Hill and Garrow failed to hold off in questioning Mr. Sonne and the circumstances surrounding the making of those statements tainted the two statements given to Detective Bui that followed, rendering them inadmissible and that, in any event, both statements to Detective Bui are involuntary. This, too, is disputed by the Crown.

7I heard the evidence of Detectives Hill and Garrow as well as Detective Bui and the other officers involved in the arrest of Mr. Sonne and those who had physical contact with him following his arrest. In addition, it was agreed that I could have regard to information on Mr. Sonne’s Twitter account that the Crown argued shows that Mr. Sonne was well aware of his legal rights upon arrest.

8There was a further issue of what I should take from the fact that not all of the officers who were involved in decisions surrounding Mr. Sonne’s arrest and detention on June 22, 2010 were called by the Crown. The position of the Defence was that I should draw certain inferences from the gap in the evidence on this point. The position of the Crown was that it had no obligation to call these officers, that they were not necessary witnesses to the issue of the voluntariness of the two statements obtained by Detective Bui from the defendant, and that the Crown did not have to answer matters of speculation raised by the Defence. There was no suggestion that I did not hear from any officer who did not have direct dealings with Mr. Sonne during the timeframe in which these statements were taken. I will deal with this further issue when I consider the question of whether or not this was a “pretext arrest”.

9For ease of reference, this decision will refer to the information and advice police give to an accused person upon arrest, as follows:

(a) s. 10(b) Charter right to counsel: advice to the accused person that he has the right to obtain and instruct counsel without delay and the right to telephone any lawyer that he wishes with an explanation of the availability of legal aid. The two questions typically asked at the end of this statement of rights are “Do you understand?” and “Do you wish to speak to a lawyer now?”

(b) The primary caution: asks whether or not the accused person wishes to say anything in answer to the charges and informs the accused person that he is not obliged to say anything unless he wishes to do so and that whatever he may say may be given in evidence against him.

(c) The secondary caution: cautions an accused person along the following lines: “If you have spoken to any police officer or anyone with authority or any such person has spoken to you in connection with this case, I want it clearly understood that I do not want it to influence you into making a statement.”

The Evidence and Findings of Fact

The Chronology

10Mr. Sonne drew the attention of police in the days leading up to the G20. The concerns of the police which led to the preparation of an Information to Obtain (“ITO”) and the issuance of two warrants to search his home, are set out in my Garofoli decision.² Detective Maadanian, who at the time was a Sergeant with 33 Division, had been seconded to the G20 Intelligence Unit. He was not part of the team investigating Mr. Sonne or the team executing the search warrant but was in charge of one of the surveillance teams that had been detailed to watch Mr. Sonne. On the morning of June 22, 2010, Mr. Sonne was observed leaving his home and getting on a TTC bus. After learning from Detective Sukumaran, who was in charge of another surveillance team, that the search warrant application had been granted, Detective Maadanian gave instructions to Sergeant Penton from 13 Division to arrest Mr. Sonne. The officers from 13 Division were not to be involved in the investigation of Mr. Sonne as this case was to be a G20 investigation.

11Sergeant Penton intercepted the TTC bus Mr. Sonne was on and he placed Mr. Sonne under arrest at approximately 12:00 noon on June 22, 2010. Some of the arrest was videotaped from the camera in Sergeant Penton’s police cruiser; both while Mr. Sonne was outside the cruiser standing on the sidewalk and once he was inside the cruiser. Once in the cruiser, Sergeant Penton told Mr. Sonne he was arrested for two counts of mischief under and he was given his s. 10(b) Charter right to counsel. When asked, Mr. Sonne said that he did understand his rights and that he did want to speak to a lawyer. He had a card for the Arrest Assistance Line with a phone number for a lawyer in his pocket. Sergeant Penton also gave him what he referred to as the second caution. Based on his evidence of what he said, it was the primary caution as defined above. Mr. Sonne answered that he understood this as well. No further particulars were provided of the charges. On the video of the arrest and once inside the police cruiser, Mr. Sonne appeared quite relaxed and certainly not the least bit intimidated. He appeared to have clearly understood his rights.

12Mr. Sonne was brought into police custody at 13 Division shortly after 12:30 p.m. At that time he was told that he had also been charged with intimidation of justice officials. Sergeant Penton decided to put Mr. Sonne into room “A” which was a holding room he used while the paperwork was being processed. Mr. Sonne remained here until he was taken to the cells in the early hours of June 23, 2010.

13Unbeknownst to Mr. Sonne, Sergeant Penton had been ordered by Detective Maadanian to ensure that in no circumstances was Mr. Sonne to be given access to a phone for the purpose of speaking to a lawyer or otherwise, until further notice or receiving instructions from an officer in charge. Sergeant Penton understood this was until the search warrant had been executed. This is what he told his officers and he wrote “No Calls” on the board outside the interview room to let other officers know that Mr. Sonne was not to be given access to the telephone until the search warrant was executed. There is no dispute that it was not until just before midnight that Mr. Sonne’s request to speak to counsel was facilitated. The circumstances of this “No Call order” are dealt with below.

14At around 1:45 p.m., Detectives Hill and Garrow arrived at 13 Division. Detective Hill was with the Intelligence Division of the TPS in the "Source Management” section. Detective Garrow was also with Intelligence. Both officers had been assigned to Project Onus which was dealing with issues related to the G8 and G20 Summits. Their role in Project Onus was to speak to people who might have information related to protest groups, rallies, activists and anything involved with the G8 and G20 because of problems that had occurred at other G8/ G20 meetings.

15These officers had been instructed to attend 13 Division by Detective Sergeant Johnstone from the Intelligence Unit, in order to assess Mr. Sonne to see if he might be a confidential source. They knew it was a G20 case, that Mr. Sonne had been placed under arrest for mischief (x2) and eventually, that there was a search warrant being executed. They testified that they wanted to attempt to gain some intelligence from Mr. Sonne and, in particular, information about protest groups, rallies, activities and potential violence relating to the G20 Summit. However, as I will come to, they obtained other information which was shared with the investigation team despite, at the very least, giving Mr. Sonne the impression that the information he gave to them would not be used against him and would be kept confidential.

16On arrival at 13 Division, Detective Hill spoke to Officers Shetty and Smith. They were part of Detective Maadanian’s team and they had been directed by him to attend 13 Division so that someone from the Intelligence side was present when Mr. Sonne was booked in. They did not testify. Detective Garrow recalled speaking to Sergeant Penton.

17At 2:00 p.m. Detective Garrow testified that he opened the door to the interview room where Mr. Sonne was being held, identified himself as a Toronto Police Officer and asked him if he wanted anything. Mr. Sonne asked for some water which Detective Garrow got for him and he then left Mr. Sonne. At 3:00 p.m., Detective Garrow went to see Mr. Sonne again; he asked him if he needed anything. Mr. Sonne said “no” and he left.

18At approximately 4:00 p.m., Detective Hill was introduced to Mr. Sonne by Detective Garrow. The two detectives explained that they were not from the enforcement arm and they asked him if he would speak to them. Mr. Sonne said that he would. At this point they did not tell him their purpose. They were only in the interview room with Mr. Sonne at this time for about three minutes.

19Detectives Hill and Garrow returned at 5:00 p.m. and interviewed Mr. Sonne for about twenty to thirty minutes. Detective Hill asked the questions and Detective Garrow made notes. There is no video or other record of this interview. The circumstances of this interview are in dispute and are dealt with below. After this interview, Detective Garrow testified that he went to a computer to investigate the groups that Mr. Sonne had mentioned but found nothing of interest. He then left 13 Division to get something to eat and had no contact with Mr. Sonne thereafter. He must have returned to 13 Division however, as he later said he was there until 11 p.m.

20After receiving a call from Detective Sukumaran, who passed the phone to Detective Gibson of the Emergency Task Force, Detective Hill was told that some chemicals and equipment had been found in Mr. Sonne’s home which were of concern. Detective Hill immediately went in by himself to talk to Mr. Sonne at about 6:40 p.m. He asked Mr. Sonne about the chemicals and whether or not they posed a threat. Mr. Sonne co-operated with Detective Hill and provided him with information about the nature of the chemicals that Detective Hill described as being very helpful to the officers on scene at 58 Elderwood Drive.

21At approximately 8:15 p.m. on June 22, 2010, counsel for the defendant, Mr. Kevin Tilley, called 13 Division and spoke to Detective Constable Shetty. Mr. Tilley advised that the defendant’s wife had contacted him requesting legal assistance for the defendant. D.C. Shetty collected Mr. Tilley’s contact information and advised that he would call back shortly. At 9:55 p.m. Mr. Tilley had not received a return call from 13 Division. He called back and spoke to Detective Garrow. Detective Garrow advised that he would attempt to put him in contact with Mr. Sonne.

22At around 9:30 p.m. Detective Bui was directed by Inspector Franks, the person in charge of their unit, to attend at 13 Division to evaluate whether his unit would be taking on the investigation of Mr. Sonne. At the time Inspector Franks was the officer in charge of the Prisoner Processing Center for the G20. Detective Bui’s unit, the Asian Organized Crime Joint Task Force, had been kept together to be available for criminal investigations arising out of the G20.

23On arrival at 13 Division, Detective Bui met with Staff Sergeant Chong; his immediate supervisor, and Inspector Franks. Around the same time Detective John Dunlop was also asked to attend 13 Division along with his partner Detective Janet Sobotka, in order to assist in the investigation. They arrived at 10:30 p.m. A briefing involving these officers occurred shortly thereafter. During the briefing it was decided that Staff Sergeant Chong and Detective Bui would take the lead in the investigation of Mr. Sonne.

24Detective Bui took steps to get up to speed. He learned that Detectives Hill and Garrow had spoken with Mr. Sonne and that he had not yet spoken to a lawyer. Detective Bui received other information from Detectives Hill and Garrow which I will come to. He also testified that when he arrived at 13 Division, Detective Sukumaran was still guarding Mr. Sonne’s home. Eventually Detectives Sukumaran and Lopez from the Intelligence Bureau, came to 13 Division and provided Detective Bui with some information. He had also received information from them by telephone. He learned that Staff Sergeant Chong had detailed officers to secure two cottages.

25At 10:55 p.m. Detective Dunlop heard Mr. Sonne knocking on the door of the room where he was being held. Mr. Sonne asked to go to the washroom and Detective Dunlop escorted him there. While in the hallway, Mr. Sonne asked to speak to a lawyer. Detective Dunlop advised Mr. Sonne that he would arrange this. He did not know of the “No Call” order. He was not asked about the sign on the door.

26Detective Dunlop took some steps to determine if Mr. Sonne had already spoken to a lawyer. By 11:23 p.m. Mr. Tilley had not received a return call from 13 Division and so he called back and spoke to Detective Dunlop who advised him that he would confirm his identity and credentials before calling back. Detective Dunlop then took steps to confirm Mr. Tilley’s identity as a lawyer. There was some confusion as Mr. Tilley was not yet listed on the Law Society’s website but he was able to determine that Mr. Tilley was an articling student from a law firm’s website. At 11:48 p.m. Detective Dunlop returned the call to Mr. Tilley and advised him that he had been able to confirm his identity and that he would put him through to Mr. Sonne. This did not happen at this point in time, however.

27Detective Bui spoke to Mr. Sonne briefly at 11:50 p.m. and introduced himself. Detective Dunlop was also present. By this time, based on information received, Detective Bui felt that there were reasonable grounds to believe that an additional offence had been committed, namely the possession of an explosive device. He advised Mr. Sonne of the new charge and reviewed the charge list with him. This interaction was not recorded. This holding room was not equipped with video recording equipment although there was an interview room at 13 Division that was. There is some dispute as to what Mr. Sonne was told and, in particular, what cautions were given to him at this time, which I will come to.

28At 11:56 p.m. Detective Dunlop called Mr. Tilley and transferred the call through to Mr. Sonne. This is the first time Mr. Sonne was able to speak to counsel; some 12 hours after his arrest. Mr. Sonne spoke to Mr. Tilley for about twenty minutes.

29At 1:55 a.m., early on the morning of June 23, 2010, Detectives Dunlop and Sobotka entered the interview room and asked Mr. Sonne if he wanted to speak with them to give them his side of the story. Mr. Sonne responded “I wish to engage silence. That was the advice [of] the lawyer, so that’s what I am going to do.” Detective Dunlop told Mr. Sonne that that was fine and they exited the room. It was clear to them that Mr. Sonne did not wish to provide a statement. They then brought Mr. Sonne down to the booking area and at about 2:15 a.m., Mr. Sonne was lodged in the cells so that he could sleep.

30On the morning of June 23, 2010, Mr. Sonne was transported for the purpose of a bail hearing, to the provincial courthouse at 2201 Finch Avenue West. The G20 bail hearings were delayed until 2:00 p.m. At approximately 12:20 p.m., Detective Bui arranged for Mr. Sonne to be brought to a room so that he could take a statement from him. There is a video recording of most of this interview. The video ends approximately twenty minutes before the end of the interview, because the tape ended. No issue was made about the failure to record that last portion of the interview.

31On June 23, 2010, the police arrested the defendant’s wife, Kristen Peterson. On June 26, 2010 Detective Bui met Mr. Sonne in a room at the courthouse to conduct another interview. This statement was recorded by video.

Mr. Sonne’s independent knowledge of his rights

32Mr. Byrne filed, on consent, several exhibits that were copies of documents that could be found by clicking on links to postings by Mr. Sonne on his Twitter account. In his Tweet on June 21, 2010, Mr. Sonne posted: “read EVERY PDF on this page and know your rights.” There was a link from this Tweet to “movementdefence.org” and the materials there all relate to what was described as G20 specific resources materials. This included a pocket-size “Know Your Rights Flyer”, a “Legal Guide for Activists” and a brochure entitled “What to do if the police come knockin’.” The flyer makes it clear that one should not answer any questions or give any statements apart from name, address and date of birth. The legal guide is intended to provide the person who reads it with an overview of their rights when dealing with the police. It also deals with what a person should do if arrested by police. This includes asserting the right to silence. The brochure is to the same effect.

33As Mr. Sonne did not testify, there is no evidence from him as to his understanding of these documents although given his Tweet, it is reasonable to infer that Mr. Sonne had read these documents and was generally familiar with their contents. These documents provide no information with respect to the secondary caution as I have defined it.

The “No Call” order

34Detective Maadanian testified that he wanted Mr. Sonne arrested before the search warrant was executed. As already stated, Detective Maadanian instructed Sergeant Penton that under no circumstances could Mr. Sonne have access to a phone, including contacting a lawyer, until further notice or if directed by an officer in charge. Detective Maadanian gave no further instructions in this regard and did not have any further involvement in the arrest or investigation of Mr. Sonne. Detective Maadanian testified that this decision was made after a discussion with Detective Sukumaran, who he understood had been in contact with Detective Lopez, another member of the investigation team, and that although he only spoke to Detective Sukumaran, the entire investigation team would have decided this. Neither Detective Sukumaran or Detective Lopez nor any other officer involved in making this decision testified on the voir dire.

35Detective Maadanian testified that one of the reasons for the No Call order was a concern for explosives in Mr. Sonne’s home and a resulting concern for officer and public safety. He was also concerned about the destruction of evidence. He was specifically concerned about the possibility of Mr. Sonne speaking by telephone to someone in the house. When further questioned, however, he testified that he was not sure if he knew about explosives before Mr. Sonne’s arrest and that he might have learned of this afterwards. He understood that the Emergency Task Force was going to execute the search warrant because there was a concern about what sort of evidence they might find. Although he did settle on a “final answer” that he had a concern about explosives before Mr. Sonne was arrested, he was clearly unsure about this. There is no evidence that the officers investigating Mr. Sonne had any reason to believe he might have explosives or explosive substances in his home before his arrest. Accordingly, explosive substances could not have been the reason for the No Call order, at least initially. I find, however, that Detective Maadanian was simply confused about this, not that he intended to mislead the court.

36Detective Maadanian testified that in his experience, any time a search warrant is to be executed, the person in question is arrested first and not allowed to use the phone for any purposes until the search warrant has been executed. He gave three reasons for this; officer and public safety concerns and to a lesser degree the potential for the destruction of evidence. He stated that these concerns are in play until the premises to be searched are secured. Detective Maadanian couldn’t say at what point that occurred with respect to Mr. Sonne’s home. When asked about what the risk would be in permitting someone to speak to a lawyer, Detective Maadanian said that the police would not know who the lawyer might call and there could be a possibility of a three-way call, which they could not control.

37None of the other witnesses called by the Crown were asked about the No Call order or why it was that Mr. Sonne was not able to speak to his counsel for some 12 hours.

The interview by Detectives Hill and Garrow – 5:00 p.m.

The right to counsel

38There is no dispute that Detectives Hill and Garrow did not re-caution Mr. Sonne as to his right to counsel or inquire as to whether or not he had spoken to counsel prior to the interview they conducted at 5:00 p.m. Detective Hill testified that he understood Mr. Sonne had been read his rights to counsel but that he had no concern about whether or not he had, in fact, spoken to a lawyer as they were not there to discuss the charges with him.

39Detective Hill testified that they told Mr. Sonne that they were not there to investigate him on the charges he was facing and they explained their interest to him, namely that they were gathering intelligence with respect to groups, activists and rallies leading up to and at the G20 and that they had no indication that Mr. Sonne was directly involved in those. They did not want to have any conversation with him about his charges. Detective Garrow also confirmed that at no time was it their intention to gather evidence to be used against Mr. Sonne and that Mr. Sonne was told this. I will come back to this when considering the issue raised by the Defence of whether or not Mr. Sonne’s arrest was a pretext.

40Detectives Hill and Garrow both testified that it is not their practice when interviewing someone for the purpose of assessing whether or not they might be a confidential source and to glean information not related to the person’s criminal conduct, to see if that person wants to speak to a lawyer. Detective Hill admitted that because he was not worried about getting evidence for the record, he was not concerned about the admissibility of information obtained from Mr. Sonne or whether or not any information was given in violation of Mr. Sonne’s right to counsel. As he was talking to Mr. Sonne as a potential source, in his view that did not impact his Charter rights. Detective Garrow confirmed this evidence. This practice was not directly challenged in cross-examination.

The failure to videotape the interview

41A secondary voluntariness issue raised by the defendant in argument was the failure to videotape the statements given to Detectives Hill and Garrow. However, in the cross-examination of these officers, it was never suggested to either of them that they ought to have videotaped their interview of Mr. Sonne or that anything untoward occurred during their conversations with him. In fact, it was suggested in the cross-examination of Detective Bui that it would not be the practice to videotape an interview of a confidential source and he agreed with that. Any suggestion that this interview should have been videotaped is inconsistent with the Defence position that Mr. Sonne was assured the information he gave would be kept confidential. Furthermore, given their stated purpose, I would not expect that Detectives Hill and Garrow would have considered it necessary to videotape the interview. For these reasons I find that the failure to videotape this interview does not impact on the issues I must determine on this application.

The assurance of confidentiality

42Detectives Hill and Garrow both testified they were interested in assessing Mr. Sonne as a confidential source. Detective Hill testified that they did not give Mr. Sonne any assurances that what he might say would not be used against him but in cross-examination he did admit that generally, they would try to keep information provided to them confidential and that he would have explained to Mr. Sonne that they would try to keep information he provided confidential. In cross-examination, Detective Garrow admitted that he had two sets of notes; daily notes and notes of his interviews of confidential sources and persons of interest, over which he would assert confidentiality. He also admitted that they told Mr. Sonne something to the effect that he could talk to them as they were “not going to hand that off to investigators.” As already stated, they both testified that Detective Hill made it clear to Mr. Sonne that they were not there to investigate him and that information that he gave them about the G20 and protesters was not for the purpose of building a case against him.

43Detective Garrow was asked by Mr. Byrne if, when he and Detective Hill told Mr. Sonne that they were not there to investigate him, that was a good faith assurance on their part or a trick just to get him talking. Detective Garrow said it was a good faith assurance and that there was no point in trying to trick people into talking. He went on to say that there might have been points that they could have probably “drilled down upon” giving the potato gun as an example, which might have relevance towards the criminal charges but that Detective Hill avoided that. This evidence was not challenged in cross-examination.

44At the end of the interview, Detective Hill said that they told Mr. Sonne that he did not have the information they were looking for. They had decided he was not a suitable source although they did not tell him that. Detective Garrow testified that they had not come to a conclusion but agreed that at that point he did not see Mr. Sonne as a potential confidential source. Detective Garrow testified that even though they determined that Mr. Sonne would not be used as a confidential source, he did not consider that as a result they would use any information he provided against him.

45Detective Garrow testified that Mr. Sonne was not promised that he would be used as a confidential source and this evidence was not challenged. Detective Hill was not asked about this. There is no evidence that Mr. Sonne told these officers anything of value that might result in their considering him to be a viable confidential source given their stated purpose in interviewing him and Mr. Sonne made no reference to the possibility of being a confidential source when he was interviewed by Detective Bui. I find that Mr. Sonne was never told that he would be used as a confidential source and never became a confidential informant.

46Mr. Sonne did not testify and during his first interview with Detective Bui, he made no statement that suggested he believed that what he had told Detectives Hill and Garrow would not be used against him or that he believed that what he told them would be kept confidential. However, based on the evidence of Detectives Hill and Garrow, I find that while exploring the possibility of Mr. Sonne becoming a confidential source, he was told that these officers were not investigating him, that anything he told the officers would not be used against him and that it would be kept confidential in the sense of not passed on to the officers investigating his charges. This finding becomes important to the Defence’s tainting argument.

The information obtained from Mr. Sonne

47Detective Hill was leading the conversation with Mr. Sonne and did not have notes of what was said. He testified that they had no conversation with respect to the charges Mr. Sonne was facing, even accidentally, and that Mr. Sonne had answers to each of their questions. He said that Mr. Sonne advised them right away that he had no information but he continued talking to them and they had general conversations with him. This included basic details about his background and his hobbies. Detective Hill had no recollection of any conversations with respect to photos on the Internet or about discussing a project on the go for making rocket fuel, although he did recall that Mr. Sonne told him this when he went in to see him at 6:40 p.m. Detective Hill also recalled Mr. Sonne advising them during the 5:00 p.m. interview that he had built a potato gun. He recalled seeing photos of that but could not recall if that was before or after his conversations with Mr. Sonne.

48Detective Garrow used his notes of the interview to refresh his memory. He testified that Detective Hill asked Mr. Sonne a series of background questions and that after giving some general information including the fact that he had no criminal record, Mr. Sonne began talking about his own life and what he did for a living. He told them that he was a reverse engineer and was with an IT company. He mentioned that he was a hobbyist and liked to build things and that he was a member of the Canadian Association of Rocketry. When Detective Hill asked what Mr. Sonne liked to build, he discussed a microwave control panel that he was using to try to create waves. He told them that he had tried to make components of rocket fuel and an electro cell to break down salt and that he had also built a potato gun. He told them that he liked to tinker and when Detective Hill asked him what else he liked to do, they had a conversation about cottages, where his cottage was and where his in-laws’ cottage was.

49It was at this point in Detective Garrow’s notes that he noted Detective Hill asking Mr. Sonne whether he belonged to any social groups. Mr. Sonne told them that he had no knowledge of protest groups but that he did belong to a social group called hacklab.to, the Toronto Area Security Klatsch; a surveillance club for collecting pro and anti surveillance things and a Facebook group. He was then asked if he had heard anyone talking about the G20 in Toronto and Mr. Sonne told them he had been to 1266 Queen Street which he called the Convergent Space. Detective Hill asked him if there were any groups planning any acts of violence and Mr. Sonne said these groups were mostly talking and the people were not violent people. In cross-examination, Detective Garrow testified that he did not recall Detective Hill asking Mr. Sonne about postings on the Internet or things that were on Twitter. He admitted it was possible, however, as he could not get everything down in his notes.

50An evidentiary issue arose when Mr. Byrne, counsel for the Crown, objected to the fact that during his submissions, Mr. Copeland relied on an exchange between Mr. Sonne and Detective Bui for the purpose of establishing what information was, in fact, given by Mr. Sonne to Detectives Hill and Garrow. In particular, during the course of the statement taken by Detective Bui from Mr. Sonne on June 23, 2010, when Mr. Sonne was asked about his Flickr page, and Detective Bui told him that if they talked about that Mr. Sonne would understand why the police had some concerns, Mr. Sonne answered:

…Like there are two people, two detectives from the Intelligence Unit. They made it quite clear, you know exactly why, you know. And they say no matter how lawful all of these things might be individually, put it together and it looks like something nasty. So they drilled that into me again and again and again. So, you know I don’t think that. You know. I don’t. I can’t see what new would be brought to that part of the conversation.

51Mr. Byrne submitted that this portion of Mr. Sonne’s statement cannot be admitted for its truth, as it is not evidence going to the circumstances of the taking of the statement he gave Detective Bui, but rather is past narrative of earlier events. He argued that if the defendant wished to put this version of Mr. Sonne’s interaction with Detectives Hill and Garrow before the court, his obligation was to take the witness box and face cross-examination. He also submitted that there was an obligation to put this passage to the detectives because of the rule in Browne v. Dunn.³ Mr. Copeland responded that the Crown intended to tender the statement as part of its case if successful on this part of the voir dire and so the Defence should be able to rely upon it for its truth. Neither counsel provided any authority on this issue.

52I have decided to consider the statement of Mr. Sonne to Detective Bui as to the nature of what was discussed with Detectives Hill and Garrow subject to two qualifications. First of all, as Mr. Byrne argued, there was a violation of the rule in Browne v. Dunn in that this portion of Mr. Sonne’s statement was not put to either detective, either directly or indirectly, in an effort to challenge their evidence as to what was discussed during their interview of Mr. Sonne and more importantly to challenge their evidence that they did not question Mr. Sonne about the charges. This impacts on the weight I should give to this evidence. Furthermore, Mr. Sonne’s perception that these officers “drilled” into him time and time again that “these things” taken together might look nasty does not necessarily refer to the Flickr pages or any particular piece of information that he might have provided to the officers. In addition, although he refers to both of them, it is possible that this type of conversation would have taken place between Detective Hill and Mr. Sonne surrounding the chemicals in his home. We simply do not know because the questions were not asked of these officers when Mr. Copeland had the opportunity to do so and Mr. Sonne did not testify.

53Based on the evidence of Detective Garrow a great deal was discussed with Mr. Sonne but as Detective Hill had no notes to refer to, he was clearly relying only on his memory. I, therefore, do not find that Detective Hill deliberately omitted information obtained from Mr. Sonne when he testified about an event that took place almost 1 ½ years before. As for Detective Garrow, I find that he did his best to record the conversation and that any omissions from his notes are solely because he could not get everything down.

54Mr. Copeland argued that it is very odd that if these two detectives went in to speak to Mr. Sonne only for intelligence purposes and not about any charges, that they touched upon the main areas of interest underlying the investigation. Again this was not put to the officers during cross-examination. Their stated purpose in investigating Mr. Sonne was not challenged in cross-examination. Detective Garrow did make notes to the best of his ability, and the way he explained the interview unfolding is equally consistent with Mr. Sonne volunteering information. My sense from the unchallenged evidence of Detective Garrow, which I accept, is that his notes accurately explain how Detective Hill’s interview unfolded. The fact Mr. Sonne may have volunteered information of interest to the investigation is not surprising as he is clearly an intelligent man and given his arrest would have had some idea of what the police would be interested in. His statements to Detective Bui, which were largely exculpatory, make it clear that he wanted to explain why he had done certain things and had certain things in his possession. The fact, for example, that the microwave touch pad came up in the discussion is equally consistent with Mr. Sonne raising this in an effort to provide an innocent explanation for something he believed that police already knew about or would find. Certainly in the absence of cross-examination of Detectives Hill or Garrow as to how this came up or evidence from Mr. Sonne, the fact this and other information relevant to the investigation was given by Mr. Sonne to these detectives does not mean that it was as a result of accusatory questions they asked of Mr. Sonne. My sense from the unchallenged evidence of Detective Garrow, which I accept, is that his notes accurately explain how Detective Hill’s interview unfolded. Detective Hill talked about wanting to build a bond and it would not make sense that he would immediately go to the information he was seeking. Starting with general back ground questions in the manner described by Detective Garrow makes sense. On the evidence, it seems most likely that Mr. Sonne was volunteering information in response to general questions about his background; questions that would normally be innocuous, and that the interview naturally flowed from there.

The interview by Detective Hill – 6:40 p.m.

55Mr. Copeland questioned why, if Detectives Hill and Garrow were at 13 Division on their own, as opposed to being part of the investigation team dealing with the search warrant, Detective Hill was the one who was called to deal with the concern about the chemicals in Mr. Sonne’s home. Again this question was not asked of Detective Hill when he was cross-examined. The fact the call came through to Detective Hill could have been for any number of reasons including the simple fact that Detective Sukumaran had been told Detective Hill had spoken with Mr. Sonne. I am not prepared to speculate why Detective Hill was asked to speak to Mr. Sonne nor draw an adverse inference from this fact in the absence of evidence on the point.

56When Detective Hill went in to ask Mr. Sonne questions about the explosives, he told Mr. Sonne that officers were at his home and that they had grave concerns about the items that they had found. Mr. Sonne answered his questions and his responses were very helpful to the officers at the scene. This interview lasted only minutes. Detective Hill agreed that there was no clear break between one conversation and the other but denied that his role changed to that of an investigator. He testified that officer and public safety were his only motivation in speaking to Mr. Sonne about these matters at this time. Although Detective Hill admitted that Mr. Sonne was not told that what he had been told before did not apply or that these questions were in a different category, as an intelligent person, he believed it would be reasonable to assume that Mr. Sonne appreciated that these specific questions were being asked in order to provide his responses to those officers dealing with the chemicals in his home. Although I agree this makes sense, I find that Mr. Sonne would still have been entitled to assume that the information he gave would not be used against him in light of the assurances that he had already been given by Detectives Hill and Garrow.

57Detective Hill was not challenged as to his purpose in asking the questions of Mr. Sonne and I accept his evidence in that regard. I find that there was no improper motive when he went in to speak to Mr. Sonne about the chemicals or when he shared that information with Sergeant Gibson. These were exigent circumstances given the concerns over what had been discovered in Mr. Sonne’s residence.

The information Detectives Hill and Garrow had from other sources

58Apart from going out to eat, Detectives Hill and Garrow were at 13 Division all afternoon and evening until sometime around 11:00 p.m. Although some of the investigating officers were at 58 Elderwood Drive, as already stated, on arrival, Detective Hill spoke to Detective Constables Shetty and Smith and a few other officers he did not identify. Detective Constables Shetty and Smith were part of Detective Maadanian’s team and they had been directed by him to attend 13 Division so that someone from the Intelligence side was present when Mr. Sonne was booked in. They were still at 13 Division when Detective Dunlop arrived at 10:30 p.m. Detective Hill was not asked about what information he obtained from Detective Constables Shetty and Smith and those officers did not testify. He was not asked to identify the other officers he spoke to or what they told him.

59Detective Hill testified that he didn’t believe he knew what the charges stemmed from and he had no recall of reviewing the ITO for the search warrant. He did remember viewing photos on computers. He did not recall what they were when he testified. Although he was not shown any Flickr photos posted by Mr. Sonne, it is reasonable to assume that this is what he was referring to. He could not recall if he was by himself when he saw these photos and said it was possible Detective Constables Shetty and Smith were there. Detective Hill did not remember what he did for the four hours or so before he interviewed Mr. Sonne. He stated that they might have gone out to get something to eat.

60Detective Garrow testified that Detective Hill was taking the lead and had had various conversations with people on the phone, which he said were other investigators, but he did not know who he spoke to. After both the 2 o’clock and 3 o’clock visits, Detective Garrow went to the adjacent room to look on the computer to see if he could get some background information on Mr. Sonne; he was interested in “access points”, to facilitate their conversation. Otherwise he testified that he had limited knowledge about the background of the matter and would have been concerned about jeopardizing the investigation. Although he was in contact with some of the surveillance officers who were at 13 Division at some point, he did not think they actually knew about the investigation. He did talk to Sergeant Penton who told him Mr. Sonne’s property and the Record of Arrest were on the table. He did not recall if D.C. French was at 13 Division or that anyone showed him the ITO for the search warrant.

61The Defence argued that Detective Hill could not be believed because he could not make sure they did not talk about Mr. Sonne’s current charges unless they knew more about them than he admitted. Again this was not put to Detective Hill. In the absence of hearing how Detective Hill would have answered this question, I cannot conclude that I should disbelieve him on this point. Given his stated purpose in questioning Mr. Sonne, and the fact at least at the time of these interviews their stated intent was to keep the information that he gave them confidential, I do not accept the proposition that he would necessarily have needed to know a great deal about the investigation. They told Mr. Sonne they did not want to talk to him about his charges. I also believe that Detective Hill knew more at the time than he could recall by the time of trial. However as I have already stated I do not believe he was not forthcoming with what he could recall when he testified. His inability to recall more seemed genuine. He would not have had any reason to make notes of any information he was being given about the investigation and this is not the kind of information I would expect him to have good recall of now without referring to notes.

The shared information

62Detective Hill admitted to immediately calling Sergeant Gibson back after he spoke to Mr. Sonne at 6:40 p.m., and telling him about the chemicals, but he did not believe that he told anybody else about them. In further cross-examination he admitted to talking to D.C. French later and telling him about the potato gun. He also admitted it was possible he spoke to Detective Dunlop and he recalled talking to Detective Bui later in the evening but he could not recall what they spoke about. None of the information from Detective Dunlop’s and Detective Bui’s notes was put to Detective Hill nor was he cross-examined about why he was speaking to the officers investigating the charges given his evidence that he would keep the information provided by Mr. Sonne confidential.

63Detective Garrow was only asked if he talked to D.C. French after the interview and he responded that he did not know who D.C. French was. No further questions were asked of him to suggest that he had told anyone about the information Mr. Sonne had provided to them.

64Detective Dunlop testified that when he arrived at 13 Division at 10:30 p.m., it was brought to his attention that Detectives Hill and Garrow had spoken to Mr. Sonne and he obtained some information from them. He was told that Mr. Sonne had chemicals in his house and that the Emergency Task Force had to be involved, that Mr. Sonne had advised Detectives Hill and Garrow that he had all this property because he belonged to a rocket club. Detective Dunlop was also told about a website on Twitter called TorontoGoat with photos of security fencing and cameras and their positions, that Mr. Sonne was a member of Hacklab that met at 1266 Queen Street, and that Mr. Sonne was a reverse engineer and an IT security specialist. It was not expressly confirmed that this additional information came from Detectives Hill and Garrow but clearly some of it did as it corresponds with information Detective Garrow noted from their interview of Mr. Sonne.

65Detective Bui testified that Inspector Franks phoned Detective Hill to ascertain why he and Detective Garrow had spoken with Mr. Sonne and what had happened in the conversation and Detective Hill related certain information to Inspector Franks who, in turn, passed it on to Detective Bui. Although he was not asked, this information must have come to Detective Bui after the interview of Mr. Sonne by Detective Hill at 6:40 p.m. as Detective Bui had no involvement with this matter before 9:30 p.m. Detective Bui testified that he received this information both before and after he gave Mr. Sonne his rights to counsel. Detective Bui was aware that some information had been used to initiate some investigative steps such as search warrants for the cottages. Detective Bui was advised that Mr. Sonne had told Detectives Hill and Garrow that he was not involved in G20 groups but had been exposed to some groups. He learned about the further interview that occurred around 6:30 p.m. about suspicious chemicals inside the residence and that Mr. Sonne had provided details about these chemicals, and that Detective Hill had passed the chemical names on to Sergeant Gibson. Detective Bui had not heard that there had been any discussion about Flickr photos with Mr. Sonne by Detectives Hill and Garrow.

66The information communicated to Detective Bui seems to have been more limited than the information communicated to Detective Dunlop. Given the notes of Detective Dunlop were not put to Detective Hill and given it was not even suggested to Detective Garrow that he passed on any information to the investigation team, and given that neither Detectives Hill or Garrow were asked about why information obtained from Mr. Sonne, apart from the results of the 6:40 p.m. interview, were passed on to the investigators, it is impossible to determine from the evidence the reason that Detective Dunlop, and to some extent Detective Bui, were given information that these detectives testified they would have considered confidential. Regardless of how it happened, there is no evidence that any information was passed on to the investigating officers until after the discovery of the chemicals and the 6:40 p.m. interview of Mr. Sonne by Detective Hill.

The motivation of Detectives Hill and Garrow - was this a pretext arrest or police trick?

67Mr. Copeland submitted that the court must consider whether or not Detectives Hill and Garrow did, in fact, have knowledge of the allegations against Mr. Sonne and whether or not they had an ulterior or improper purpose for their dealings with him. In particular, an issue was raised whether or not Mr. Sonne’s arrest was a pretext for an intelligence operation in relation to the upcoming Summits rather than to legitimately pursue the charges against him. It was also argued that Detectives Hill and Garrow attempted to abuse the common law of informer privilege in order to advance the investigative side of the case. It was submitted that in either case, their conduct would amount to a trick that would render Mr. Sonne’s statements to them involuntary.

68No hint of this argument was made by the Defence during the course of the Garofoli portion of the voir dire. Furthermore, as I have already stated, when Detectives Hill and Garrow testified, their stated purpose in interviewing Mr. Sonne was not challenged in cross-examination nor were they asked why Detectives Dunlop and Bui at least, had received some information about what Mr. Sonne had told them, in addition to information Mr. Sonne had given to Detective Hill about the chemicals.

69On Friday, November 18^th^, 2011, during the cross-examination of Detective Bui by Mr. Copeland (which was after the evidence of Detectives Hill and Garry), Detective Bui was asked whether or not he was personally aware whether the Intelligence Unit of the TPS might ever disregard the formalities and protocol required in relation to search warrant applications if they did not want to use the results of the search in evidence. This question came out of left field and raised a serious concern with the Court and at this point, I asked Mr. Copeland how a question related to the search warrant process was relevant at the stage we were at in the voir dire; namely the admissibility of statements given by Mr. Sonne to Detective Bui. I was advised by Mr. Copeland that as a result of further disclosure received and evidence that had been heard during the course of the week, the Defence was considering whether to make a further request for disclosure from the Crown’s office in relation to the details of the Intelligence Unit’s role in this operation. No application to re-open my earlier Garofoli ruling was made. Mr. Copeland submitted that if there was a plan that was in place by officers in the Intelligence Unit related to the statements Detectives Hill and Garrow obtained, he did not see how that plan could be separated out from the search warrant application. Not having explored this at the time of the Garofoli application, nor when Detectives Hill and Garrow were in the witness box; another violation of Browne and Dunn, and in the absence of even a shred of evidence suggesting that Detectives Hill and Garrow were part of the search warrant process, I was not persuaded of the question’s relevance. I made no final ruling and advised Mr. Copeland that he needed to persuade me of the questions’ relevance. There were neither further submissions with respect to that line of questioning nor any attempt by the Defence to reopen my ruling on the Garofoli application.

70It was not submitted at the time that this question was relevant to an argument that Mr. Sonne’s arrest was just a pretext in order to get information from him. That argument did not develop until submissions on the admissibility of the statements were made. At that time Mr. Copeland argued that once he put this question to Detective Bui, the Crown was on notice that the Defence was taking the position that the decision to continue the No Call order was made so that information could be extracted from Mr. Sonne. Along these lines, it was argued that the arrest of Mr. Sonne was a “pretext arrest” and that he had only been charged to extract information from him.

71In the course of submissions on the global s. 24(2) Charter argument, the issue of onus was raised. The position of the Defence was that enough questions had been raised to shift at least the evidentiary burden to the Crown to answer all questions as to why the No Call order was in place for so long, why Mr. Sonne was not permitted to call counsel earlier, why no officer in charge was assigned until late on the night of his arrest and why information had been shared by Detectives Hill and Garrow with the investigators and that the Crown had to answer the allegation that this was a pretext arrest and search warrant in order to simply bring Mr. Sonne in to question him generally about the G20.

72Mr. Di Luca drew my attention to two decisions, R. v. Bartle⁴, and R. v. Burlingham⁵. In Bartle, the court made it clear that just because an applicant bears the ultimate burden of persuasion under section 24(2) does not mean that he or she will bear this burden on every issue relevant to the inquiry. As a practical matter, the onus on any issue will tend to shift back and forth between the applicant and the Crown, depending on what the particular contested issue is, which party is seeking to rely on it and, of course, the nature of the Charter right which has been violated (at para. 50). In referring to the text The Law of Evidence in Canada, by Sopinka, Lederman and Bryant at page 397, the court set out a passage that confirms that once a Charter violation and circumstances surrounding it are proven, the true burden in practice is bound to drift towards the Crown since many factors in the equation are within the particular knowledge of the Crown, for example, good faith, urgency, and availability of other investigative techniques. In that case the court found that the Crown bore the legal burden of persuasion of establishing that the applicant would not have acted any differently had his section 10(b) rights been fully respected and that as such the applicant did not bear the burden of proving that he would have consulted counsel had his section 10(b) rights not been infringed.

73In Burlingham, when considering the seriousness of a Charter violation, the court noted that an accused is not generally in a position to demonstrate the officer’s mala fides and that it is reasonable that an accused need only point to conduct which possibly indicates bad faith before the onus shifts as a practical matter to the Crown to demonstrate the good faith of the officers involved (at para. 98)

74I have no evidence as to why the No Call order remained in place for so long or why there was a delay in assigning an officer in charge. I do not accept the submission of the Defence that the Crown had an onus to call all of the officers who could have shed light on this issue. The Crown had conceded a breach of the implementational duties imposed by s. 10(b) of the Charter and never sought to introduce evidence given by Mr. Sonne to Detectives Hill and Garrow or to rely on evidence obtained as a result of such information. Until the question I have referred to was asked of Detective Bui in cross-examination, no issue was raised about the No Call order in the context of it being part of a pretext arrest or that the arrest of Mr. Sonne was just a pretext. In fact that was not even clearly suggested until Mr. Copeland made his submissions. Absolutely no hint of this is found in the applicant’s factum filed before trial in support of these applications. In that factum it is stated that the purpose of the 4:00 p.m. interview was originally to assess Mr. Sonne’s potential as a source of intelligence for G20 related protest activity. It is asserted that the assurance of confidentiality by Detectives Hill and Garrow was false and that a s. 10(b) Charter breach in connection with Mr. Sonne’s statement to Detectives Hill and Garrow tainted the subsequent statements to Detective Bui.

75As the application proceeded and the evidence was called, the Defence left no stone unturned. Nevertheless, absolutely no questions were asked of any witness directed to this suggestion during the Garofoli hearing or the questioning of Detectives Hill and Garrow. Furthermore, if the Defence considered any other evidence to be important, there was no reason why a request could not have been made of the Crown that certain witnesses be available for questioning at trial. This was the approach taken with two police officers on that part of the voir dire related to the search of computers and there is no reason to believe that the Crown would not have cooperated for other officers as well, had a request been made. Furthermore, a request for the re-attendance of Detectives Hill and Garrow could have but was not made.

76Where it is not practicable for the Defence to call the evidence, for example as suggested in Burlingham, where the court noted that an accused is not generally in a position to demonstrate the officer’s mala fides, the accused must point to conduct which possibly indicates bad faith before the onus shifts as a practical matter to the Crown to demonstrate the good faith of the officers involved. That however must be done in such a way to actually put the Crown on notice there is a live issue of bad faith that will be argued. I do not accept Mr. Copeland’s submission that the Crown was put on notice of this issue when he asked the question of Detective Bui that I referred to, particularly given no argument was made during the Garofoli that this was a pretext arrest and search warrant and absolutely no questions along these lines were asked of the officers involved in the arrest of Mr. Sonne or Detectives Hill and Garrow, despite the opportunity to do so. The late suggestion that this was a pretext arrest is an extremely serious allegation of bad faith involving many officers. It would not have been something the Crown could have anticipated in this case.

77The purpose of calling evidence on these applications was to address the issues raised, not to answer every conceivable factual question that could be asked about the interactions between the police and Mr. Sonne as more and more ideas popped into the heads of Defence counsel. There was no attempt to ask these questions of the witnesses who did testify; I have already pointed out the gaps in the questioning of Detectives Hill and Garrow.

78The failure to canvas this issue during the Garofoli hearing, which is when it ought to have been raised, was not because of a lack of time devoted to these applications. Counsel gave an estimate before trial to the pre-trial judge that all of the applications, which included two that did not proceed, would take three to four days to be heard. In fact, the applications that did proceed, which included the Crown’s application to tender the statements, took closer to four weeks to be heard.

79The failure to permit Mr. Sonne to speak to a lawyer for twelve hours was a serious breach of his section 10(b) Charter rights. However, this was at all material times conceded by the Crown. For the reasons I have stated, in my view the Crown was not obliged to call all of the officers who were involved in this decision. I agree with Mr. Byrne, that the Crown did not have to answer every possible theory raised by the Defence that amounted to no more than speculation, particularly when this theory of a pretext arrest did not even clearly arise until argument. All of the officers who had any interaction with Mr. Sonne were called by the Crown.

80Accordingly I will consider this submission of improper motive in light of the evidence I do have and what inferences can reasonably be drawn from that evidence and determine the motivation of Detectives Hill and Garrow in interviewing Mr. Sonne, given what I have found as to what was discussed during the interview and what was disclosed to the investigators afterwards.

81As already stated, the Defence argued that aspects of Detectives Hill and Garrow’s evidence suggest that they did, in fact, know details of the underlying allegations. Although I have found that they may well have known more than what they recall now, for the reasons given I do not accept the proposition that this reflects adversely on their credibility.

82The theory of the defence is that from the outset these detectives intended to interrogate Mr. Sonne about the charges he was facing. I have already made findings on this issue and have concluded that this “coincidence” is most likely explained by Mr. Sonne was volunteering information in response to general questions about his background and the interview naturally flowed from there. Asking general background questions to build a rapport makes sense. In the ordinary course I would not expect general questions about background and hobbies to result in incriminating information being provided. Furthermore, if this was a pretext and the officers were acting improperly, I would not have expected Detective Garrow to have made such careful notes. I reject the submission that these intelligence officers intended to interrogate Mr. Sonne about the charges. I accept their evidence that their sole purpose in interviewing Mr. Sonne was to see if he could provide them with intelligence concerning the G8/G20 Summits.

83Counsel for the defendant made much of the fact that Detective Garrow went in to see Mr. Sonne virtually on the hour between 2 p.m. and 6 p.m. I do not draw any inferences from this. When Detective Hill was asked why there were breaks between seeing Mr. Sonne, he advised that they were waiting for information concerning what was happening with execution of the search warrant as they were not part of the enforcement arm leading the investigation and they did not want to interfere with the investigation. This evidence was not challenged and I accept that explanation.

84As already stated, it was submitted by the Defence that Detectives Hill and Garrow employed a police trick utilizing the purported cloak of informer privilege to elicit information from Mr. Sonne. I accept the evidence of both Detectives Hill and Garrow that when they set out to interview Mr. Sonne, it was for the purpose of assessing whether or not he might be a confidential source and, in particular, to provide information that would be of assistance concerning protests planned for the G20 Summit, and that they were not there to investigate him. Their evidence as to their purpose was not directly challenged. The only indirect attack was the fact information was obtained from Mr. Sonne that was ultimately shared with investigators. Again, that is difficult to assess as Detectives Hill and Garrow were not asked very much about this either. It is clear that the discovery of the chemicals caused Detective Hill to question Mr. Sonne again and he admitted immediately passing that information on to Sergeant Gibson. His reason for passing the information on was officer safety concerns and I accept that.

85Obviously information about potato cannons and the cottages was also passed on, likely by Detective Hill, to the investigators and it found its way into the second ITO being prepared by D.C. French. This was not put to Detective Hill and so I have no idea what he would have said by way of explanation. The fact additional information was passed on does not mean that these officers went in to interview Mr. Sonne to investigate him and not for their stated purpose or that they improperly used assurances of confidentiality to glean information relevant to the investigation from him. The reason some information was shared could also have been as a result of the discovery of the chemicals in Mr. Sonne’s home which no doubt changed the nature of the investigation. In that regard the fact there is no evidence that any information was shared until after the 6:40 p.m. interview is important. I accept the evidence of Detectives Hill and Garrow as to their purpose in questioning Mr. Sonne. I do not find that their failure to keep the information that he provided to them confidential, undermines that original purpose or suggests that they were not honest in that regard. However, the fact they may have given Mr. Sonne the impression that what he told them would be kept confidential is important to the tainting argument because if he was under the impression that what he told Detective Bui could not be used against him, then that would certainly taint that statement. I will come to that.

86Mr. Byrne argued that the fact that Detectives Hill and Garrow shared some of what Mr. Sonne told them with investigators was of no moment and that naturally police intelligence officers will share what they learn with investigators—otherwise, police intelligence gathering would be a useless exercise. He submitted that the “brake” on abuse here is use immunity. This submission, however, is at odds with what I have found the detectives told Mr. Sonne. Although they certainly did not testify that Mr. Sonne had been promised that the information would be kept confidential, I have found on their evidence that Mr. Sonne was told that these officers were not investigating him and that anything he told the officers would not be used against him and that it would be kept confidential in the sense of not passed on to the officers investigating his charges. They gave no evidence to suggest that they felt they could share the information they obtained from him with investigators; with the exception of the information about the chemicals given to Detective Hill during the 6:40 p.m. interview.

87As for the delay in the assignment of an officer in charge, Detective Bui admitted that it was unusual to find himself in an investigation of this seriousness and to have confusion about who the officer in charge had been. It did not make sense to him that there was this confusion. It is reasonable to infer that the fact Mr. Sonne was not afforded an opportunity to speak with a lawyer had something to do with the delay in the assignment of an officer in charge but anything more as to why there was such a delay would be speculation on my part. I accept Mr. Copeland’s submission that I would be speculating if I consider that this delay may have been as a result of confusion generated by a G20 arrest. However, I do not accept the submission that this was another area where the Crown had an onus to call witnesses to fill in the factual gap in the evidence. There is no suggestion in the evidence or any reasonable inferences to be drawn from the evidence to suggest that the delay in assigning an officer in charge had anything to do with the interview conducted by Detectives Hill and Garrow or that it is was because this was a pretext arrest.

88For these reasons, I reject the Defence submission that this was a pretext arrest and that Detectives Hill and Garrow were part of some scheme to keep Mr. Sonne from speaking to a lawyer so that they could get information from him, under a ruse of confidentiality and pass it on to the investigators. This theory is not supported by the evidence that I heard on the voir dire.

The first interaction between Detective Bui and Mr. Sonne

89Detectives Bui and Dunlop went into the room where Mr. Sonne was held for the first time at about 11:50 p.m. on June 22^nd^. Detective Bui did so because he wanted to give Mr. Sonne his rights. Although it would have been possible for them to record their exchange with Mr. Sonne, they did not do so. Detective Bui said he wanted to build a rapport. According to Detective Bui, this meeting lasted about six minutes.

90By this point, Detective Bui had not read the ITO in support of the warrant to search Mr. Sonne’s home nor had he spoken to D.C. French. He had, however, read a working copy of the synopsis. He understood that Mr. Sonne was facing very serious allegations relating to the G20 Summit including allegations that he had been trying to get through the security fence, possibly with a forged security pass, that he might have a device to disrupt communication systems and that there were chemicals or substances that could be used to create explosive materials found in his home. He understood that the chemicals in the home could be combined to make ANFO or HMTD. He wasn’t sure if a fully assembled device had been found or not but at the time he understood that there was HMTD located in the house.

91During this interview, Detective Bui advised Mr. Sonne that he was being charged with two counts of intimidation of a justice participant, mischief, attempted mischief, possession of an explosive substance and weapons dangerous. Furthermore, Detective Bui said that he gave Mr. Sonne his Charter 10(a) and (b) warning. He explained the right to retain and instruct counsel in private without delay and that he could call any lawyer that he wished or be provided with a number for Ontario Legal Aid and that he was not obliged to say anything to the police but that anything he did say could be used in evidence against him. Detective Bui stated that he asked Mr. Sonne if he understood those rights and he responded “yes” and, when asked, Mr. Sonne said that he wished to contact legal counsel. Detective Bui then testified that he asked Mr. Sonne if he understood the caution that he did not have to say anything but that anything he said could be used in evidence against him and he responded “yes” to that as well. Detective Bui described this as a “secondary caution”; this caution is what I have defined as the primary caution.

92Detective Bui testified that he did not read these warnings from a notebook but that he gave them off the top of his head. He appreciated the risks involved in doing that, but testified that he does so as he is trying to build a rapport with the defendant and wants to keep it conversational. After Detective Bui gave this evidence, Mr. Byrne asked him in a single question if he said anything to Mr. Sonne to the effect of having spoken to other officers and Detective Bui answered “no”.

93Detective Bui started his evidence off the next day advising the Court that after giving his evidence he was reviewing his notes and that refreshed his memory about giving Mr. Sonne a secondary caution and that he had made an error in his evidence. He then testified that he gave a secondary caution and gave evidence as to what he would have said to Mr. Sonne. Detective Bui explained that he took Mr. Byrne’s question the day before as asking him whether or not he had gotten into a conversation with Mr. Sonne about what other people had said to him. In cross-examination, he admitted that he had looked at his police notebook before giving this further testimony. Detective Bui denied that he made the same mistake in his notes as Sergeant Penton. Detective Bui admitted that he looked at the wording of the secondary caution which is in his own notebook, before he testified to the correction. Detective Bui agreed that from his perspective the most important part of this exchange with Mr. Sonne at that time was giving the right to counsel.

94Detective Dunlop had no recollection of the exact words used by Detective Bui. He recalled it was “conversational” and that Detective Bui clearly covered the explanation to ensure that Mr. Sonne understood. Detective Dunlop confirmed that there was a sheet that listed the charges and that the charges were explained to Mr. Sonne. He testified that at that time the rights to counsel were read by Detective Bui to Mr. Sonne. He noted two responses to these questions; the first one was “No,” and the second response, to the question “Would you like to speak to a lawyer now?” was “I think I would.”

95The caution that was given to Mr. Sonne, according to Detective Dunlop, was both a primary caution and a secondary caution. He referred to the back of his workbook to read both cautions as part of his testimony. Detective Dunlop stated that this is complicated language and so there was a dialogue back and forth to make sure Mr. Sonne understood. He believed Mr. Sonne understood what had been said. He made no note with respect to Mr. Sonne’s understanding of the secondary caution because he was not asked if he understood that caution.

96Detective Dunlop testified that even though Mr. Sonne responded “no” to the first question, following the right to counsel, given that Mr. Sonne had asked for a lawyer both when he took him to the washroom and then again in response to the second question, that in his mind he understood his rights. Detective Dunlop testified that the caution was then read to Mr. Sonne. He said that if, in his mind, he had felt that Mr. Sonne did not understand his rights he would have taken steps to clarify that. If, in the course of this discussion with Mr. Sonne, he had felt that Detective Bui had missed something important, he would have straightened that out. In relation to either the rights to counsel or the caution, he did not feel that Detective Bui had missed anything important. In his mind he was taking steps to ensure that Mr. Sonne spoke with counsel. Detective Dunlop had already had a conversation with Mr. Tilley by this point and was going to ensure that Mr. Tilley spoke to Mr. Sonne.

97Detective Bui confirmed that he did not refer to Detectives Hill and Garrow expressly, that he never told Mr. Sonne to disregard any assurances of confidentiality given to him by them and at no time was Mr. Sonne told that he was no longer being considered as a possible confidential source.

98It is unfortunate that Detective Bui’s interaction with Mr. Sonne was not videotaped but I accept that was not done in order to improperly extract information from him nor is there any suggestion that that was done. At this time Mr. Sonne had not spoken to counsel and there is no suggestion in the evidence that Detective Bui intended to or tried to get a statement from him at this time. Unlike the facts in R. v. Moore-McFarlane,⁶ Detective Bui did not deliberately set out to interrogate Mr. Sonne when he and Detective Dunlop went in to speak to him.

99I do, however, have to determine what Detective Bui told Mr. Sonne and, in particular, whether or not the secondary caution was given.

100The only direct attack on the credibility of Detective Bui was that he admitted that in an affidavit sworn on November 22, 2010, for use in a bail proceeding before the Ontario Court of Justice, in which he swore that HTMD had been located in Mr. Sonne’s residence, that that statement is a mistake. As set out in my Garofoli decision, that was a mistake made by D.C. French at the time the second ITO was prepared. Detective Bui testified that he did not know if he could put an exact date on when he came to understand that no completed explosive substance was located in Mr. Sonne’s house but that he would say it took him maybe two weeks to fully understand that with some uncertainty. He was not asked, in light of that admission, why he swore that HMTD was located in Mr. Sonne’s residence or how the mistake in his affidavit arose. Although the mistake in the affidavit is still serious there is no evidence that it was a deliberate misstatement at the time the affidavit was sworn.

101As for Detective Bui’s evidence generally, I found him to be a credible witness. He was responsive in cross-examination. His answers to questions relevant to the breach of s. 503(1)(a) of the Criminal Code are good examples. The error he alleged that he made in his evidence concerning the secondary caution must be carefully scrutinized. I accept that the error was genuine and that nothing improper occurred before rectifying the error when Detective Bui resumed his testimony. His explanation of the error did not appear rehearsed as submitted by Mr. Copeland. Had Detective Bui intended to be dishonest in his evidence on this point it would have been easy to simply read the cautions from the back of his memo book in the first place. He is an experienced officer and was aware of the fact that Detectives Hill and Garrow had spoken to Mr. Sonne. I also accept his explanation for how he misunderstood the question from Mr. Byrne. Nevertheless, if I consider only the evidence of Detective Bui, the error in his evidence does raise some doubt as to what he, in fact, told Mr. Sonne.

102However, I have the evidence of Detective Dunlop which is clear on the point that the secondary caution was given. I was very impressed by the evidence of Detective Dunlop. He recorded the fact Mr. Sonne answered “No” to the first question following the giving of his rights to counsel which he would have known would be disclosed to the Defence. He was equally aware of the fact that Detectives Hill and Garrow had spoken to Mr. Sonne which would give rise to the need to give a secondary caution. I did not find it significant that he used the word “caution” instead of “cautions” when giving his evidence.

103I do not accept the submission that the language in the second caution is not intuitive or language that would be readily understood by experienced officers like Detectives Bui and Dunlop or that Detective Bui was confused by the caution when he testified. The rationale for the caution is obvious from its wording and would not be hard to explain without reading from the back of a memo book by an experienced officer like Detective Bui. Furthermore, there is nothing that Mr. Sonne said in either statement to Detective Bui that even hinted at the suggestion that he believed that what he was telling Detective Bui would be kept confidential or that he was speaking to him because of something that happened when he spoke with Detectives Hill and Garrow. In fact Mr. Sonne repeatedly made statements that made it clear that he understood that what he was telling Detective Bui could be used against him.

104For these reasons I am satisfied that Detective Bui gave Mr. Sonne his rights to counsel and both the primary and secondary cautions.

The June 23, 2010 statement taken by Detective Bui

105The interview of Mr. Sonne by Detective Bui on June 23^rd^ commenced at 12:20 p.m. Detective Bui had directed one of the court officers to bring Mr. Sonne to him; Mr. Sonne had not asked to speak to him. Mr. Sonne was arrested at 12:10 p.m. on June 22^nd^. Detective Bui admitted that he knew Mr. Sonne had not been brought before a justice within 24 hours of his arrest. He had hoped that he would have had his first appearance at 10:00 a.m. and did not realize until he got to court that the G20 bail matters had been put off until 2:00 p.m. He admitted that he chose to interview Mr. Sonne in any event. He did not bring this problem to anyone’s attention nor take any steps to bring Mr. Sonne immediately before a justice. He felt he had no control over when the bail hearing would be.

106At the outset of the interview, Mr. Sonne did not recognize Detective Bui from the night before. Detective Bui did remind Mr. Sonne that he had reviewed a sheet of paper with all the charges that he was under arrest for the previous night. Detective Bui did not refer to giving Mr. Sonne any Charter rights or cautions nor did he repeat any of them. Mr. Sonne did confirm that he had had an opportunity to speak to his lawyer; this was a reference to the conversation with Mr. Tilley the night before.

107Although by the time of this interview Detective Bui had learned more details about Detectives Hill’s and Garrow’s interaction with Mr. Sonne, he did not give Mr. Sonne the secondary caution again or advise him to disregard anything said by him or to him by any previous police officers or to disregard any assurances of confidentiality that Detectives Hill or Garrow had given him. Detective Bui admitted that he was aware of where Detectives Hill and Garrow worked and understood that there was a possibility that they had made an approach to Mr. Sonne. He did not want to enter that approach into his interview with Mr. Sonne and could only guess at what their approach might have been. He felt that Mr. Sonne understood the secondary caution and had been adequately advised.

108As I will explain, during this interview, Mr. Sonne was the one who raised the subject of his interview with Detectives Hill and Garrow and it came up on a few occasions. Detective Bui admitted in cross-examination that there were a few other points in the interview when he understood comments made by Mr. Sonne related back to his earlier interview with Detectives Hill and Garrow. On none of those occasions did he give Mr. Sonne the secondary caution. He agreed that Mr. Sonne’s repeated references to “you guys” could be a reference to himself and Detectives Hill and Garrow collectively. He testified however, that police are often referred to even in their individual capacity as a group. At no time did Detective Bui refer to Mr. Sonne’s interviews with Detectives Hill and Garrow, either directly or indirectly. Furthermore, there is nothing in the statement that suggests Detective Bui used information they provided to him to put specific questions to Mr. Sonne. Essentially he took Mr. Sonne through photographs taken by the Forensic Investigation Service of the TPS that had been taken before the execution of the June 23, 2010 search warrant. At no time did Mr. Sonne say anything that suggested that anything he had told Detectives Hill and Garrow was to be kept confidential.

109At the outset of the interview, when asked if he knew what charges he was facing Mr. Sonne responded that he understood the words but that they were outright lies. He added that from reading the list; I presume the charge list, “you guys make me look like I’m some kind of terrorist or something.” He went on to give exculpatory information related to the taking of pictures, the potato cannon and the chemicals. At this point Detective Bui asked Mr. Sonne about his Flickr page, and told him that if they talked about that Mr. Sonne would understand why the police had some concerns. Mr. Sonne then referred to the “two detectives from the Intelligence Unit” and I have already set out what he said at that point. At this point Detective Bui asked Mr. Sonne questions about the potato launcher and showed him various photos and Mr. Sonne responded to his questions. It is clear that he felt he was providing innocent explanations for what was concerning Detective Bui.

110After Mr. Sonne had provided some exculpatory information to Detective Bui about the potato launcher, someone knocked on the door and Detective Bui was told that Mr. Sonne’s counsel wanted to see him. Detective Bui responded that Mr. Sonne was not available. It was at this point in the interview Mr. Sonne asked did he not have a right to see his counsel. Detective Bui answered that he did and an exchange followed confirming again that Mr. Sonne had spoken to his counsel the night before and that he had not seen his lawyer in court that morning. To that Detective Bui responded that Mr. Sonne was going to have an opportunity to see his lawyer at 2:00 p.m. in the afternoon and he asked Mr. Sonne if that was all right with him. The following exchange then took place:

BS: I don’t really have a choice, do I?

TB: Well you do. But I want to ask you some questions. …This is a good dialogue. I think you’re explaining some stuff to me…

BS: And how do I know you’re not just using this to build up a case against me? And just, you know, like stick me in detention, or you know in jail for a year or two. I mean, I’m not sure I’m doing anything here that’s helping me. Other than, I know it’s helping you.

111Mr. Sonne did not ask to see his lawyer at this time. Furthermore, this last comment by Mr. Sonne makes it clear that he appreciated that what he told Detective Bui could be used against him. It would also be difficult to think that Mr. Sonne would believe his statement would be kept confidential when, unlike his interview with Detectives Hill and Garrow, this statement was being videotaped. Detective Bui asked if he was doing anything that was hindering himself and Mr. Sonne responded that if he did not say anything he did not see how that would help or hinder because “you guys seem pretty … intent on causing me … some serious discomfort.” Detective Bui responded that they were trying to get to the bottom of what they believed to be a very serious situation and to that Mr. Sonne responded “Well I don’t know … what I can say that’ll help you get to the bottom of it. …I thought I said everything already. You know, that seems reasonable.” This is clearly another reference to his earlier conversations with Detectives Hill and Garrow but it is also clear that at this point Mr. Sonne was clearly debating whether or not to remain silent.

112At this point in the interview, Detective Bui changed the subject to the postings of photographs of fences and Mr. Sonne continued to answer his questions. Again, his answers were exculpatory. When asked whether or not the wave guide could be an electronics counter measure, Mr. Sonne responded that he was not going to get into that and that he would “have to see what the legal ramifications behind agreeing to that” are. Ultimately Detective Bui asked whether or not Mr. Sonne had chemicals that could be combined to create an explosive device. At this point Mr. Sonne stated “I think this interview might be over, officer.” He went on to state that he was “discontinuing this conversation.” Nevertheless Detective Bui continued to ask questions which Mr. Sonne answered. Again the answers are exculpatory. It is clear from these exchanges that Mr. Sonne appreciated that he had the right to remain silent and that the answers to questions he gave could be used against him. He refused to answer questions that he felt might incriminate him and his clear motive in continuing to answer other questions was to provide what he believed to be exculpatory answers.

113Further into the interview Mr. Sonne was asked again whether all of the chemical compounds that he had, combined in the right concoction, could create an explosive device. He responded: “I’m not going to admit to that because I know you’re setting me up to get me to say something that, look he knows he could have made a bomb. And I’m not intending on saying that.” Again the interview continued and Mr. Sonne answered other questions with what appear to be exculpatory answers.

The June 26, 2010 statement taken by Detective Bui

114When Detective Bui obtained a second statement from Mr. Sonne he had arranged to speak to Mr. Sonne; Mr. Sonne did not ask to speak with him. Detective Bui was not contemplating any further charges and so in his view Mr. Sonne’s jeopardy was unchanged. He did not re-Charter him before speaking to him although he did go through the wording of the Charter with Mr. Sonne later in the interview. Detective Bui testified that he believed Mr. Sonne had been adequately provided with his Charter rights on a number of different occasions by a number of different officers and that he had been provided access to counsel. He thought that Mr. Sonne had also spoken to his counsel at court or in detention but was not sure about that. In his mind he had complied with all of his legal duties.

115At the outset of the interview Detective Bui asked Mr. Sonne if he understood why he was still under arrest and Mr. Sonne responded “yeah I think”. Detective Bui then asked him: “You understand those rights that I explained to you back at 13 Division when we talked and nothing has changed for you, okay, you understand you’re at a police facility, right?” In response to that Mr. Sonne said “yes”. Because of the compound nature of the question, it is not clear what Mr. Sonne was agreeing with. Detective Bui did not repeat Mr. Sonne’s rights to him at this stage of the interview, nor did he repeat any cautions. However, Mr. Sonne clearly still understood that he had the right to remain silent because at the outset of the interview he told Detective Bui that he might not respond to his questions. Furthermore, he stated on a number of occasions that he wanted to run things by his lawyer before providing information.

116An outline of the manner in which this interview unfolded is as follows:

• At the outset of the interview Mr. Sonne told Detective Bui that he was not good because “you guys have my wife”. Detective Bui confirmed that Ms. Peterson had been arrested on two counts and that it was important that he and Mr. Sonne talk about this that day because it would impact on the well being of his family. Detective Bui testified that he was making an appeal to Mr. Sonne based on the impact his actions were going to have on other people and the consequences that could follow from choices he made. This became an important tactic during the interview.

• Detective Bui immediately brought up the idea of Mr. Sonne providing a “reasonable explanation” and this was also a tactic that he pursued throughout the interview. He read to Mr. Sonne part of a report from the Open Source Criminal Investigation Section of the RCMP, that he referred to as containing information from the Internet that had been pulled from the “deep web”, in which Mr. Sonne’s wife had posted that if “you blow up our house I will be really, really mad”. He told Mr. Sonne this post was in February without mentioning that it was February 2009; that was only clarified much later in the interview. Detective Bui linked this comment by Ms. Peterson to an element of a charge against her and suggested it reflected knowledge she had of explosive materials in the house. He advised Mr. Sonne this was a problem for her that “we can’t ignore” and that it was going to affect her bail that day. He told Mr. Sonne that he had been engaged in conversation with his lawyer, Ms. Peterson’s lawyer and the Crown about fashioning a bail plan that everyone, including the police investigator, namely himself, would be happy with. When asked if there was a reasonable explanation, Mr. Sonne said that there was but that he would not talk. Detective Bui responded: “There’s a reasonable explanation, but you’re not willing to give what that reasonable explanation might have been today when she’s going up for bail?” To that Mr. Sonne responded that it was a harmless joke but that he would not talk.

• At this point Detective Bui switched tactics and told Mr. Sonne that he did not know what kind of trouble he was in and how “some other people” had become very interested in him. He then referred to the RCMP. This was the start of another tactic throughout the interview, namely suggesting to Mr. Sonne that he was in trouble with the National Security Force with the RCMP. Mr. Sonne told Detective Bui that he might vomit at any moment and that he was not feeling well. Detective Bui asked him if he needed medical attention or was just feeling uneasy and he responded that he had anxiety issues and that “it’s my life”.

• Detective Bui returned to the subject of Mr. Sonne’s wife and how “are we” going to help her. When Mr. Sonne said that their lawyers had instructed them both to remain quiet, Detective Bui responded by painting himself as the reasonable police officer who was getting reports from “these people”; a reference to the RCMP, that he wanted to share with Mr. Sonne because Mr. Sonne needed to know not just the gravity of the situation for him but the gravity of the situation “that you’ve got Kristen involved in.” Detective Bui distinguished himself from the Intelligence Section of the TPS that deals with matters of National Security. Again there appeared to have been a physical reaction as Mr. Sonne asked for a drink but said he could not eat until later.

• At this point Mr. Sonne commented that the public seemed to be not particularly happy that the police had been granted some kind of special powers to exceed what they were normally able to do. Detective Bui took this as a reference to the Public Works Act. Mr. Sonne went on to ask “Is this like the FLQ in Quebec or something right?” This suggests some concern on Mr. Sonne’s part that his normal rights had been suspended although Detective Bui denied that he understood the comment that way; he believed Mr. Sonne was making a reference to the Public Works Act.

• Later in the interview Detective Bui told Mr. Sonne that Toronto Police do not have an anti-terrorism unit. Although Mr. Sonne was not arrested under any terrorism offences, the word was brought up. Again there was a physical reaction in that Mr. Sonne suddenly mentioned that it was really freezing in the cells.

• At this point Detective Bui made repeated references to having people dropping off “stuff” like “this,” namely reports, with words “like that”, referring to the word “Secret”. He admitted that he was using this as an interview strategy somewhat theatrically; emphasizing the National Security and secret elements of the document. He denied doing this to convey to Mr. Sonne that he might be looking at something much bigger than the charges he was facing or that he chose the words “deep web” as a method to convey an investigation into something broader on the secret National Security side of things, but in my view that is what someone in Mr. Sonne’s position would naturally conclude.

• There were questions asked of Mr. Sonne that he told Detective Bui he did not want to answer, confirming that he still appreciated that he had the right to remain silent. In response Detective Bui kept bringing up the issue of Ms. Peterson’s bail that day and linking Ms. Peterson’s bail and a reasonable explanation that Mr. Sonne might provide or referring to secret documents from the RCMP that he found “scary”.

• Mr. Sonne continued to resist answering these questions but at page 14 of the transcript of the interview Detective Bui suggested that if Ms. Peterson shared ownership and care and control of the computers in the home, she might share some responsibility for what might be on the computer and referred to a download called Practical Pyrotechnics. When Mr. Sonne repeated that his lawyer would say not to answer that, Detective Bui stated that one of the most incriminating things that was going to cause a lot of problems for his wife was Setting Fires with Electrical Timers, a PDF document, and a Guide to Home and Recreational Use of High Explosives.

• Detective Bui described this as a strategy of a moral appeal of good conscience to see if Mr. Sonne would provide a reasonable explanation that might be inculpatory for him but exculpatory for his wife. In his words, during the interview he was appealing to Mr. Sonne to “man up”, to take some responsibility; explaining to Mr. Sonne the reality of the fact that where two people are accused of a crime and one is more guilty, then an explanation does alleviate that for the other individual. Detective Bui repeatedly told Mr. Sonne that “we” wanted to “fashion a bail” for Ms. Peterson and that “I” would like to fashion a bail for her although he did add that it was ultimately up to her lawyer and the Crown to craft. He denied that his strategy went beyond a moral appeal and that he was actually offering an exchange and that, in particular, he was suggesting if Mr. Sonne provided him with a reasonable explanation his wife would get bail. He was not in a position to make any kind of legal offer to Mr. Sonne and he thought he made that very clear to him.

• At page 16 of the transcript, after referring to this posting by Ms. Peterson on Mr. Sonne’s Blog, Detective Bui stated again that he needed an explanation for that post “in order for us to even consider fashioning a bail” and that he was looking to Mr. Sonne for a reasonable explanation of her comment. Mr. Sonne repeated it was a joke and that Detective Bui could tender something through his lawyer and his wife’s lawyer. Mr. Sonne acknowledged that he knew Detective Bui could not promise anything, and that only the Crown Attorney could and that he could not say anything until he spoke to his lawyer.

• When Detective Bui found out that Mr. Sonne had not been in regular contact with his lawyer, he told him that the only time the police would really force him to speak to a lawyer was if they had come in with new charges. In the course of that exchange he did repeat the right to counsel and the primary caution.

• At page 18 of the transcript Detective Bui told Mr. Sonne that they generally do not invite the Crown down to the interview room and that he was his liaison to the Crown and his lawyer’s liaison to the Crown. He emphasized that he was the officer in charge of the case. He stated that his opinion and his knowledge and his feelings about the case had bearing and repeated the need to fashion a bail for Ms. Peterson as they were going ahead with her bail hearing that day. Detective Bui denied that he was holding out the promise of favour that he would put in a good word and ensure that Mr. Sonne’s wife got bail, but I do not see how else these statements could be interpreted. He was clearly looking to Mr. Sonne for this reasonable explanation that would incriminate Mr. Sonne but help his wife because if Detective Bui was convinced of her innocence he would help fashion her bail so that she could be released.

• The interview continued with Detective Bui pressing the fact that there was a problem for Ms. Peterson because of the comments she had made on Mr. Sonne’s blog and asking Mr. Sonne what she would say when they showed her “this report by these guys,” which he pointed out had drawn the attention of “these guys”, referring to the RCMP officers who deal with National Security. At this “heightened level” in the interview, as Detective Bui put it, he said to Mr. Sonne “I think she’s going to look to her husband for some fucking help here man, right?” and “Like, fuck, Byron, cut the crap. Cut the girl some slack. Give her a break. Like, there was a reasonable explanation for this right?”

• At page 21 of the transcript Mr. Sonne responded that he had given him the reasonable explanation and repeated that it was an offhand joke. Detective Bui did not accept this and told Mr. Sonne that he had no explanation. Mr. Sonne asked what he would accept as a reasonable explanation and told him that he needed to know this because “what if all of a sudden you just throw it back in my face and say that’s not reasonable enough. And, we’ll play this game back and forth. Eventually I’ll leak a little more information and you can send your boys to make the prosecution even harder.” Detective Bui persisted in asking for the innocent explanation for his wife’s sake not for his sake and Mr. Sonne responded “How, if I tell you something, will you even give me a promise? You can’t.” Detective Bui responded:

No, but I’ll give you my opinion. And, I’ll give you how the different avenues that we can move forward. The first step is bail. That’s the first step in the system. So, so is she gonna get bail? Is she not gonna get bail? I’m tellin’ ya, today is the chance that we have for her. If her lawyers can fashion a proper bail…

• These comments by Detective Bui finally seemed to break Mr. Sonne’s resolve to remain silent and at page 22 of the transcript he asked what would help his wife the most and he started to consider what the explanation could be for her post. When he mentioned the microwave cannon, Detective Bui encouraged him and told him that this was exactly the kind of reasonable explanation he was talking about. Detective Bui asked Mr. Sonne to give some considerable thought to the position that he had put his wife in and he asked him what he was going to do about it. Mr. Sonne asked him what options he had open to him. To this Detective Bui responded that there were going to “be people” who were going to make an allegation “that you were involved in a much carefully crafted and sinister plot. Don’t let her get roped into that.” To this Mr. Sonne responded that he had no intention of doing that. This strategy was now to suggest that Ms. Peterson would get caught up in the National Security investigation by the RCMP as well.

• Detective Bui went on to ask Mr. Sonne whether, if searches were done on the open source on the Internet; on the “deep web,” were they going to find that Mr. Sonne had blogged or corresponded with any radical elements down in the United States. The exchange continued on this topic. After being asked about a posting on Pirate Bay, Mr. Sonne responded, “I suppose my lawyer would say not to answer that.” To this Detective Bui stated that “these people”, again a reference to the RCMP National Security officers, “are going to say that you were trying to incite and encourage activists’ activities.”

• Detective Bui persisted in what he described as his moral appeal to Mr. Sonne to “man up and take a bit of responsibility for some of the stupid things in life” that he had done. To this Mr. Sonne responded that it was a stupid thing and that if his lawyer would permit him to go in the direction that Detective Bui was suggesting there was a good chance that he would. Detective Bui persisted and asked what the truth was and whether or not Mr. Sonne was collecting the elements to build a bomb but had no interest in doing it. To this, Mr. Sonne responded that he had no interest in building a bomb. When asked why there were elements for the bomb in his house he did provide an explanation. Detective Bui told him his explanation was “bullshit” and not a reasonable explanation to give to the courts. He told Mr. Sonne that they might throw him in jail for a long time and that he was talking about a reasonable explanation to “save your wife. Not a lie, I’m saying the truth for once, for God’s sake.”

• At this point Detective Bui pressed his point that Mr. Sonne had the know-how and the knowledge and the instructions to build a bomb. Mr. Sonne responded that he wanted to run this by his lawyer before he answered. Detective Bui replied that he knew his lawyer was going to say that he should not say anything. To that Mr. Sonne stated that he thought that he should follow his lawyer’s instructions. Mr. Sonne told Detective Bui that if he knew Detective Bui was the Crown then he might take a different course but that he could not trust “what they’re gonna do in there to me”. By this he was referring to the Crown and all the other people lining up. He said “you’re just one guy who might mean well, but I don’t really know that your weight carries all that much”. To this Detective Bui told Mr. Sonne, “But, keep in mind. I am the guy. I am the officer in charge of these charges.” Mr. Sonne responded that he was not the Crown Attorney and that the Crown “can piss away anything you promise.” He told Detective Bui that that was why he had to wait for his lawyer to hear these ideas.

• To this Detective Bui asked Mr. Sonne what would happen when they put the officer in charge on the stand to go through the case, which was going to be him, and asked him whether or not he would rather hear Detective Bui tell the judge that he thought Mr. Sonne wasn’t really going to set off a bomb even though he had a bomb in his house, or would he rather hear him tell the judge that Mr. Sonne put together a bomb and was going to use that bomb during the G20 and that that’s what he believed. To this Mr. Sonne responded that Detective Bui couldn’t tell him that he would go in and “lie just to spite me because I didn’t plead out.” Detective Bui replied that he was not saying it was a lie. An exchange then followed about information from Mr. Sonne that counsel had agreed is not admissible in any scenario.

• Following this exchange, Mr. Sonne, in reference to the authorities, stated that they could all of a sudden say “let’s bring this guy in on a security ticket. My rights don’t matter anymore.” To this Detective Bui responded that he did not think it was ever going to get to the stage where anyone ever brought him in on a security ticket but that “as a man” he promised that he would “fight tooth and nail” to keep him in a normal facility where he would be subject to the regular rules and law of Canada. He added however, that that was not to say that “those people”, a reference to the National Security branch of the RCMP, were not going to be “looking at you.”

• Later in the interview Detective Bui repeated to Mr. Sonne that if his wife wasn’t part of it, how it was “gonna be bad for her”. He advised Mr. Sonne that it might come to a stage where the Crown was reasonably convinced that the charges against his wife could be withdrawn and that that would be a consideration for another day down the line but it would involve “a commitment from all of us, with one solid story.” To this Mr. Sonne responded that he had listened to what Detective Bui had said and was thinking about it but did need to run things by his lawyer. When Detective Bui put to Mr. Sonne that he had considered the possibility that Mr. Sonne was trying to test the security apparatus, Mr. Sonne asked if he could talk to his lawyer about that and Detective Bui responded that he could.

• After discussing some unrelated matters Detective Bui asked Mr. Sonne about whether he used his credit card to purchase “all the stuff” and Mr. Sonne responded to these questions. Detective Bui told him that he appreciated this because he knew his lawyer would say that he shouldn’t. Mr. Sonne told Detective Bui that he was somewhat leaning towards his position but he needed to talk to his lawyer.

• At this point Detective Bui told Mr. Sonne that he would speak to his lawyer about a strategy for his bail hearing but that his wife wanted to have her bail hearing and “this stuff” could cause a problem for her. Mr. Sonne immediately responded that she had nothing to do with any of this but Detective Bui went on and told Mr. Sonne that if she knew about it that she was guilty of constructive possession as well and that the big issue was the explosives. Again he pointed out that “we try to fashion a bail that is realistic and society would be happy with…”. He told Mr. Sonne that he needed to come up with a strategy to help her on this and that if he got receipts for the chemical purchases and if her post in February pre-dated the chemical purchases, then maybe that was the reasonable explanation. He then asked Mr. Sonne if he could prove that he wasn’t buying chemicals until after that post. Mr. Sonne told him that he would be able to find that evidence and then gave him further information on that issue.

• Towards the end of the interview Mr. Sonne was told that they were going to deal with Ms. Peterson’s bail at two o’clock and he told Detective Bui: “anything you can do to help my wife, sir. She’s everything to me.” To this Detective Bui responded that he thought they had made some ground because Mr. Sonne has given him some proof as to when he purchased the chemicals. In response to this comment Mr. Sonne provided further information as to where and when he purchased chemicals and volunteered that bank records, including his Visa information, could be reviewed and that most of these purchases were at the Home Depot in Leaside. This information was then explored by Detective Bui. Detective Bui eventually told Mr. Sonne to turn his mind to evidence that “we might come up with as events go on that could exonerate your wife … that’s going to help her it’s not going to help you”.

Analysis

Admissibility of the June 23, 2010 Statement

117It is the position of the Defence that the interview with Detectives Hill and Garrow was conducted in violation of section 10(b) and was the product of police trickery. As such the analysis with respect to tainting must be conducted in relation to both voluntariness and Charter principles, while bearing in mind the applicable onus in each case.

118In considering the admissibility of the statement given by Mr. Sonne to Detective Bui on June 23, 2010, the following issues must be considered:

(a) Was the information obtained by Detectives Hill and Garrow obtained in breach of Mr. Sonne’s s. 10(b) Charter rights and if so, does this breach taint the first statement given to Detective Bui rendering it inadmissible?

(b) If the first statement is not inadmissible by virtue of any Charter breaches, has the Crown established the voluntariness of the statement beyond a reasonable doubt? This will also require a consideration of whether or not any tainting of the statement to Detectives Hill and Garrow impacts on the voluntariness of this statement.

(c) Should the first statement given to Detective Bui be excluded from evidence in any event because when Detective Bui took that statement, Mr. Sonne had been in detention for more than 24 hours, without being brought before a justice of the peace, in breach of s. 503(1)(a) of the Criminal Code?

Was there a breach of s. 10(b) of the Charter?

119As the Supreme Court of Canada explained in Regina v. Suberu⁷, section 10(b) of the Charter imposes both informational and implementational duties on the police. These duties include: informing a detainee of the right to retain and instruct counsel, providing a reasonable opportunity to retain and instruct counsel and refraining from eliciting incriminatory evidence until the detainee has had a reasonable opportunity to reach a lawyer or has clearly waived that right. Furthermore, the court held that the words “without delay” mean “immediately”.

120There is no dispute that Sergeant Penton complied with the informational obligations of section 10(b) of the Charter when he arrested Mr. Sonne and that Mr. Sonne asked to speak to a lawyer. However, Mr. Sonne was in police custody for approximately twelve hours before he had an opportunity to speak to his counsel. As already stated, the Crown acknowledges a failure on the part of the police to discharge the implementational duties imposed by s. 10(b) of the Charter which guarantees everyone: “… the right on arrest or detention ... to retain and instruct counsel without delay and to be informed of that right” in a timely way.

121The obligation to immediately inform of and implement the right to counsel is subject to narrow limitations:

Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.⁸

122Even if I accept that the police may have been justified in waiting for the officers executing the search of 58 Elderwood Drive to secure the premises, in the sense of being sure no one was inside and no one could get inside, before arranging for Mr. Sonne to speak to a lawyer, that would only account for a relatively short period of time. It is not clear why steps were not taken once the home was secured to facilitate Mr. Sonne speaking to a lawyer. I have already set out my findings of fact with respect to the motivation of Detectives Hill and Garrow in questioning Mr. Sonne and have concluded that they did not do so for an ulterior purpose. As such, while the failure to permit Mr. Sonne to speak to a lawyer earlier was clearly deliberate, in the sense of it not being accidental, I find that it was not part of any scheme to secure some advantage by trying to get Mr. Sonne to incriminate himself. There is no basis in the evidence to find any connection between the No Call order and the conduct of Detectives Hill and Garrow.

123The Crown also concedes that because of assurances given to Mr. Sonne by Detectives Hill and Garrow, that any information he provided to them would not be used against him, that the information they obtained concerning the existence and location of two cottages and the potato guns located there should never have been used in obtaining search warrants of those cottages. On that basis the Crown acknowledges a violation of Mr. Sonne’s rights pursuant to s. 8 of the Charter as a result of the search of those cottages and the seizure of potato guns from one of those cottages.

124I have also found that Mr. Sonne was also told by Detectives Hill and Garrow that any information he provided to them would be kept confidential and this applied to all information he provided to them. The Crown does not seek to rely on the information provided by Mr. Sonne to Detectives Hill and Garrow or the fruits of those searches at this trial. Furthermore, there was no argument that Detective Bui used any of this information in questioning Mr. Sonne nor does it appear that he did based on the transcript of the interview.

125Mr. Sonne asserted his right to speak to a lawyer at the time of his arrest and until that right was implemented the police had a duty to refrain from eliciting incriminatory evidence from him. Had the information passed on to the investigators been limited to the information Mr. Sonne provided to Detective Hill during the 6:40 p.m. interview, I might have been persuaded by the Crown’s argument that because a large quantity of what the police believed to be dangerous chemicals had been found at Mr. Sonne’s house, that police and public safety concerns left no other option than the immediate further questioning of Mr. Sonne as a means of properly assessing these risks, and that at that time the right to consult with counsel, which is not absolute, was properly required to yield to significant officer and public safety concerns. That, however, is not all that happened.

126Although for the reasons already stated it is not entirely clear why Detectives Hill and Garrow shared more than the information Detective Hill obtained from Mr. Sonne concerning the explosives, the fact is that they did so. In my view I do not have to determine whether or not they had a duty to ensure Mr. Sonne had spoken to a lawyer before they interviewed him, when they intended only to obtain information that was either not related to his charges or to the extent they did, that they would keep that information confidential. Certainly their belief that the cautions are only necessary when there is an intention to elicit potentially incriminating information seems consistent with Suburu and so I would not say that their evidence and views in this regard are unreasonable. However, although I have accepted that they did not intend to elicit incriminating information or disclose that information to the investigators, incriminating information obtained from Mr. Sonne was disclosed to the investigating officers. Although I expressly find that was not their original intent, given the ultimate use made of the information obtained from their interviews of Mr. Sonne, Detectives Hill and Garrow either had a duty to hold off questioning Mr. Sonne until he had spoken to a lawyer or a duty not to pass on information they received from him to the investigating officers.

127For these reasons I find that the fact information obtained from Mr. Sonne before he had an opportunity to speak to a lawyer was shared with the investigators resulted in a further breach of his s. 10(b) Charter rights. In these circumstances his statement to Detectives Hill and Garrow cannot be considered voluntary.

Is the statement tainted?

128Counsel did not disagree on the law, only its application to the facts of this case.

129A promise of confidentiality sincerely made and subsequently broken by a person in authority does not result in a statement made following the promise being involuntary. However, where the promise is made insincerely or is used as a trick or trap against a suspect, different considerations apply.⁹ I have found that the original purpose of Detectives Hill and Garrow in questioning Mr. Sonne was not to obtain incriminating evidence from him or to share any information obtained with investigators, and that they did not use the assurances given to Mr. Sonne as a trick to obtain information from him. As such I find that their assurances to keep the information that he gave them confidential were sincere and the fact that some of the information was nevertheless disclosed does not, as a result, render the subsequent statement to Detective Bui involuntary.

130However, the breach of s. 10(b) of the Charter is relevant to the issue of the admissibility of the subsequent statements given to Detective Bui and, in particular, whether or not those statements were tainted or induced by the breach of Mr. Sonne’s s. 10(b) Charter rights when he gave a statement to Detectives Hill and Garrow. Where an initial statement has been determined to be involuntary, the admissibility of a subsequent statement should be considered in conjunction with the first. Admissibility is directly influenced by the grounds for the exclusion of the first statement. Factual considerations govern the assessment of the admissibility of the subsequent statement, including “the time span between the statements, advertence to the previous statement during questioning, the discovery of additional incriminating evidence subsequent to the first statement, the presence of the same police officers at both interrogations and other similarities between the two circumstances.”¹⁰ A subsequent statement is involuntary if the tainting features that rendered the initial statement involuntary continues to be present or if the fact the initial statement was made is a substantial factor in the making of the subsequent statement.¹¹ A caution or warning between the two statements or the fact that advice of counsel had been obtained between the two statements is a factor to be considered but is by no means determinative.¹²

131Where an initial statement is tainted by a breach of s. 10(b) of the Charter, a court must consider whether the subsequent statements, in this case the statements to Detective Bui, were “obtained in a manner” that violated the Charter. As Justice Doherty explained in R. v. Plaha¹³, depending on the circumstances, a subsequent statement may still be obtained as a result of the initial Charter breach, “if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct.” The analysis focuses on the temporal, contextual and causal connection between the statements given to Detective Bui and the earlier statement given to Detectives Hill and Garrow. The entire chain of events from Mr. Sonne’s arrest to the end of his interrogation by Detective Bui must be considered in answering the question: is there a sufficient important factual connection between the breach and the statement that it is possible to say that the breach and the statement are part of the same chain of events.

132I have found that Detective Bui gave Mr. Sonne the right to counsel, the primary caution and the secondary caution. Furthermore, Mr. Sonne had an opportunity to speak to counsel before his first interaction with Detective Bui. This fact could have had the effect of severing a subsequent statement from an earlier breach of the right to counsel although I appreciate that it is not determinative. The effect of that consultation on the question of whether the subsequent statement was obtained in a manner that infringed Mr. Sonne's right to counsel must be a case-specific inquiry.¹⁴

133In this case there was a temporal connection in terms of time in that the statement Mr. Sonne gave to Detective Bui on June 23, 2010 was given 19 hours after the first interview with Detectives Hill and Garrow. In R. v. T.(E.), at p. 301, Sopinka J. referred to the “close temporal relationship” between the statement and the prior breach, in a case where the challenged statement was made the day after the breach, in ruling that it should have been excluded under s. 24(2). However, as Doherty J. pointed out in Plaha, counting the measurement of a temporal connection requires more than counting the hours. The events that occur during the time interval can colour the significance of the passage of time. In this case, unlike the facts in Plaha, Mr. Sonne did not remain in the same interview room and he had had a lengthy conversation with Mr. Tilley, from a firm that went on to represent him in this proceeding. After that conversation, when asked by Detective Dunlop whether he wished to give a statement, Mr. Sonne said “no”, expressly relying on advice from counsel to remain silent. He was also given an opportunity to sleep before being taken to the court house where he was interviewed by Detective Bui.

134In another case relied upon by the defendant; R. v. Lewis,¹⁵ the second interview was conducted immediately after and by the same officers who conducted the first interview. Similarly, in T.(E.) the same officers obtained the challenged statement. In this case, Mr. Sonne was no longer being questioned by Detectives Hill and Garrow and in that sense the statement taken by Detective Bui was not part of the same interrogation process.

135Although not determinative, considering Detective Bui’s whole approach, there was a “fresh start”, as defined in the case law. I have found that when Detective Bui first met with Mr. Sonne he cautioned him, giving him both the right to counsel and the primary and secondary caution and provided him with the opportunity to speak to counsel. The cautions and the opportunity to speak with counsel after the statements to Detective Hill and Garrow went a long way to dissipate any taint that may have been caused by that statement. As the Supreme Court stated in R. v. Sinclair,¹⁶ the most important function of legal advice upon detention is to ensure that the accused person understands his rights; chief among them which is his right to silence.

136In this regard Mr. Sonne’s knowledge of his rights, based on the information he had posted on Twitter and his obvious sophistication, intelligence, and willingness to challenge the police when he did not agree with something being said to him corroborates my conclusion on the rest of the evidence that he was not swayed by anything said by Detectives Hill and Garrow. With Detective Bui, it is clear that he was fully aware of his ability to choose what questions he would answer and what he would not. His ability to evaluate what was being said to him and his willingness to challenge Detective Bui when he said something that he did not agree with was also clear. He frequently refused to discuss certain matters and was clearly not afraid to challenge Detective Bui when he disagreed with something he had said. He displayed an understanding of his rights and the law that was far beyond that exhibited by the typical accused. Furthermore, there was no suggestion that he was under any misapprehension that what he told Detective Bui might not be used against him and in fact he repeatedly made it clear that he realized that what he told Detective Bui could be used against him.

137In R. v. Goldhart,¹⁷ Sopinka J. explained that,

…while a temporal link will often suffice, it is not always determinative. It will not be determinative if the connection between the securing of the evidence and the breach is remote. I take remote to mean that the connection is tenuous. The concept of remoteness relates not only to the temporal connection but to the causal connections as well. It follows that the mere presence of a temporal link is not necessarily sufficient. In obedience to the instruction that the whole of the relationship between the breach and the evidence be examined, it is appropriate for the court to consider the strength of the causal relationship. If both the temporal connection and the causal connection are tenuous, the court may very well conclude that the evidence was not obtained in a manner that infringes a right or freedom under the Charter. On the other hand, the temporal connection may be so strong that the Charter breach is an integral part of a single transaction. In that case, a causal connection that is weak or even absent will be of no importance. (at para. 40, emphasis added)

138In the case at bar, there is no causal connection between the two statements; the statement to Detectives Hill and Garrow is not a factor contributing to the making of the statement given to Detective Bui. During this interview by Detective Bui, Mr. Sonne was the one who raised the subject of his interview with Detectives Hill and Garrow and it came up on a few occasions. However, nothing that he said suggested that he was speaking to Detective Bui because of that earlier interview or because of anything said to him by Detectives Hill and Garrow. In fact, on a couple of occasions Mr. Sonne stated there was no point in speaking with Detective Bui because he had already explained everything to the Intelligence Officers. At no time did he attempt to justify or explain away what he had told Detectives Hill and Garrow or try to dig himself out of what he perceived he had dug for himself in the first statement. Furthermore, Detective Bui did not use any information that he obtained from Detectives Hill and Garrow in questioning Mr. Sonne.

139For these reasons I find any temporal connection between the two statements to be too remote to meet the “obtained in a manner” test. Any temporal link was greatly weakened by the events I have identified.

140As for the contextual relationship between the two statements, although Detective Bui could have done more to make a fresh start and, in particular, repeat the secondary caution at the outset of the interview, in my view that is not fatal in all of the circumstances. He made no attempt to link his interview to the earlier statement. Unlike the facts in R. v. Wittwer,¹⁸ at no time did Detective Bui refer to any information he had obtained from Detectives Hill and Garrow, confront Mr. Sonne about what he told those detectives or suggest that Mr. Sonne repeat what he told them. I have already found that it is clear from the statement given by Mr. Sonne to Detective Bui that he was well aware of his right to silence and, more importantly, that any information he gave to Detective Bui could be used against him.

141Furthermore, there was no tainting of the statement to Detective Bui by the earlier assurances of confidentiality made by Detectives Hill and Garrow. Mr. Sonne clearly was under no misapprehension that any assurance of confidentiality given by Detectives Hill and Garrow still applied. At no time during his interview with Detective Bui, did Mr. Sonne suggest that he believed the information that he provided to Detectives Hill and Garrow would be kept confidential or not be used against him. In fact, it is clear from what he did say that he understood that what he told Detective Bui could be used against him. Mr. Sonne seemed quite willing to talk to Detective Bui to give his side of things and his statement is exculpatory in the sense that he gave Detective Bui an innocent explanation for things found in his home or at the cottages.

142For these reasons, I find that the statement given by Mr. Sonne to Detective Bui was not obtained in a manner that infringed his right to counsel nor was it involuntary because of any tainting by features that rendered the initial statement to Detectives Hill and Garrow involuntary.

Section 503(1)(a) of the Criminal Code

143The Defence submitted that this first statement to Detective Bui was obtained in violation of section 9 of the Charter, as it was taken from Mr. Sonne when he was unlawfully detained in violation of s. 503(1)(a) of the Criminal Code. Moreover, it was submitted that during this period of unlawful detention, Detective Bui prevented Mr. Sonne from speaking with his lawyer, which might amount to a separate violation of section 10(b), given the change in the nature of Mr. Sonne’s detention.

144The Crown acknowledged that by the time Detective Bui arranged to speak to Mr. Sonne, he was unlawfully detained in breach of s. 9 of the Charter because he had not been brought before a justice of the peace in breach of s. 503(1)(a) of the Criminal Code which provides: “where a justice is available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be brought before a justice without unreasonable delay and in any event within that period.” The Crown does not accept that a further breach of section 10(b) occurred.

145s. 503 of the Criminal Code is an important protection for protection of the liberty of an accused person and in particular to ensure that an accused person is not detained any longer than is absolutely necessary.¹⁹ With respect to the breach of s. 9 in this case, I accept the submission of Mr. Byrne that it is a freestanding breach that resulted in no prejudice to Mr. Sonne. He clearly was not going to ask to have his bail hearing that day in any event and so while there is a temporal connection between the two events, the causal connection is non-existent. This is not a situation such as that in R. v. Mangat²⁰ where the very purpose of not taking the accused before a justice was to try to extract a confession out of him. There is no basis for any such finding in this case. The s. 9 breach has no impact on the admissibility of the statement.

146I also do not accept the submission that there was a further breach of s. 10(b) of the Charter. Detective Bui was not responsible for the delay in Mr. Sonne’s bail hearing and there had been no change in Mr. Sonne’s jeopardy that would require him to be re-cautioned. The interview took place just outside the 24 hour period. Although arguably a sustained violation of s. 503 might at some point give rise to such an riequirement, such a point was never reached here.

147It is true that Detective Bui did not allow Mr. Sonne to speak with counsel when counsel attended, but the Supreme Court in Sinclair held that s. 10(b) should not be interpreted as conferring a constitutional right to have a lawyer present during a police interview.²¹ Furthermore, since there had been no change in jeopardy or any other material change in Mr. Sonne’s situation, or other factors identified in Sinclair, there was no right to re-consult with a lawyer.²²

148For these reasons I find there was no further breach of s. 10(b) of the Charter.

Voluntariness of the statement

149There were no other issues raised that could impact on the voluntariness of this statement or its admissibility. Accordingly, for the reasons stated, I find that the Crown has proven beyond a reasonable doubt that the June 23^rd^ statement was given voluntarily. It may be tendered by the Crown as part of its case.

Admissibility of the June 26, 2010 Statement

150Having found that Mr. Sonne’s first statement to Detective Bui was not obtained in a manner that infringed his right to counsel and was voluntary and, therefore, admissible, the only remaining issue that arises with respect to the admissibility of the June 26^th^ statement is whether or not the Crown has proven that it was voluntary beyond a reasonable doubt. There are no freestanding Charter issues regarding this statement.

151The thrust of Mr. Copeland’s submissions focused on the linking by Detective Bui of the prospects of bail for Mr. Sonne’s wife with his provision of a “reasonable explanation” for evidence and even the possible future withdrawal of the charges against her and the creation of circumstances of oppression through the creation of a fear in Mr. Sonne that his legal rights might be suspended and that he could end up on a “security ticket”. After considering the applicable legal principles and the transcript and video of the second statement, I accepted this submission and ruled that I was not satisfied beyond a reasonable doubt that part of the June 26^th^ statement was voluntary. My reasons are as follows.

152Counsel were in agreement with respect to the applicable law that I must consider on this issue as summarized by counsel for the defendant. As the Supreme Court of Canada held in R. v. Oickle,²³ to be found to be voluntary, the Crown must establish beyond a reasonable doubt that the statement was not the result of a threat (fear of prejudice) or a promise (a hope of advantage) held out by Detective Bui or as a result of circumstances of oppression or other police trickery. The lack of an operating mind was not an issue.

153A court should not focus on any particular aspect of the police conduct in isolation. Rather, factors going to voluntariness may work in combination. Conduct by persons in authority becomes improper when “inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the suspect has been overborne”.²⁴ (emphasis added)

154Any threat or promise need not be aimed directly at the suspect for them to have a coercive effect. Where the threat or promise is directed to another person, the court must look to whether the suspect’s relation to that person is one of such vital concern that he would untruthfully confess to protect that person.²⁵

155The classic “hope of advantage” is the prospect of leniency before the courts. It is improper for a person in authority to suggest he will take steps to procure a reduced charge or sentence if the suspect confesses. An explicit offer by the police to procure lenient treatment in return for a confession is a very strong inducement and will warrant exclusion in all but exceptional circumstances.²⁶

156Courts should be particularly focused on police conduct suggesting a direct exchange of a benefit if an admission is made. As stated in Oickle, “the most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise.”²⁷

157As for the argument based on alleged oppression, the court in Oickle recognized that oppression has the potential to produce false confessions. A possible source of oppressive conditions is intimidating questioning and the police use of non-existent evidence which, when combined with other factors might convince the suspect that protestations of innocence, even if true, are futile.²⁸ (emphasis added)

158In considering this statement, it is clear that perhaps because of further advice from counsel, Mr. Sonne no longer wanted to answer many of Detective Bui’s questions. Unlike the first interview, Detective Bui had to employ some strategies to get him to talk and he clearly employed the two strategies the Defence alleges make the statement involuntary. The question is did he cross the line?

159In this case, Detective Bui was not suggesting any advantage to Mr. Sonne directly but he was repeatedly linking the prospects of Mr. Sonne’s wife getting bail that day if Mr. Sonne could provide a “reasonable explanation” for certain evidence that incriminated his wife and that would show that his wife was innocent of the charges she had been arrested for but would clearly incriminate him instead.

160Detective Bui knew from the outset of the interview that Mr. Sonne cared for his wife. As soon as Mr. Sonne saw Detective Bui he told him that he was not good because his wife had been arrested. There could be no doubt that offers to help Mr. Sonne’s wife to get bail and be released from jail on the day Detective Bui was conducting this interview could have caused Mr. Sonne to untruthfully confess or give evidence to Detective Bui to help his wife. His relationship with her was clearly of vital concern to him. He said as much on a number of occasions throughout the interview. As the interview was ending Mr. Sonne pleaded with Detective Bui to do what he could for his wife, stating that he couldn’t live with himself if she was shut away “in some hole for God knows how long.” When Mr. Sonne was told that they were going to deal with his wife’s bail at two o’clock, he pleaded with Detective Bui to help her and told him that she was everything to him. These statements were clear and compelling and I accept them as true. In fact, Detective Bui was clearly counting on the fact that Mr. Sonne would worry more about his wife than his own interests as part of a key strategy during this interview.

161Helping to fashion a bail for Mr. Sonne’s wife was clearly a prospect of leniency before the court. However, I must consider the fact that Mr. Sonne appreciated that Detective Bui was not in a position to make a deal; Mr. Sonne stated this on a number of occasions. Although Detective Bui never directly stated that he personally could ensure that Mr. Sonne’s wife would be released on bail, he repeatedly stressed how he personally needed to be satisfied that she should get bail and that he was the key person in achieving that and that it had to happen that day. His promise to help was contingent on Mr. Sonne answering his questions.

162Mr. Byrne’s position is that this strategy employed by Detective Bui was a perfectly legitimate appeal to Mr. Sonne’s sense of decency and that in any event, even if I find that Detective Bui, in fact, made an offer of favour to Mr. Sonne it could not possibly give rise to a reasonable doubt because the defendant refused to “take the bait”. Mr. Byrne relies on various points in the transcript where Mr. Sonne refused to tell Detective Bui what he wanted to hear.

163Appeals to conscience and morality are admissible in evidence even when urged by a person in authority.²⁹ To that extent the appeals to Mr. Sonne to “man up” and help his wife were clearly legitimate. They, however, were quite distinct from the offers made to help Mr. Sonne’s wife get bail. It is true that Mr. Sonne appreciated that Detective Bui could not make any promises about his wife’s bail. However, every time Mr. Sonne would point this out, Detective Bui emphasized his status as the officer in charge and repeatedly told Mr. Sonne that he personally needed a reasonable explanation so that a bail could be fashioned for Ms. Peterson that day. He stated that his opinion and his knowledge and his feelings about the case had bearing in terms of fashioning a bail for Mr. Sonne’s wife. As he put it, he was Mr. Sonne’s liaison with the Crown and his lawyer.

164I also have a great deal of difficulty with that portion of the statement where Detective Bui suggested that his evidence as the officer in charge depended on hearing this reasonable explanation from Mr. Sonne. Although, arguably he was suggesting only that he needed to be persuaded that Mr. Sonne was not really going to make a bomb, Mr. Sonne’s belief that he was threatening to lie in court was not unreasonable. This was right after they talked about what Detective Bui could do to help his wife in court as a witness that day in getting bail. In my view this was clearly improper.

165In my view, by stressing his role and ability to help secure a release for Mr. Sonne’s wife and linking his willingness to do so, if Mr. Sonne provided a reasonable explanation, Detective Bui offered a quid pro quo to Mr. Sonne. He was clearly offering a hope of an advantage for Mr. Sonne’s wife if Mr. Sonne gave him a reasonable explanation which involved giving information that would incriminate him. Although early on in the interview Mr. Sonne seemed able to resist this appeal, his resolve eventually began to waiver. In my view this resulted not only from this quid pro quo but also circumstances of oppression and police trickery that escalated as the interview continued.

166In my opinion, Detective Bui’s strategy that the National Security branch of the RCMP were investigating Mr. Sonne and believed he was part of a sinister plot created circumstances of oppression or alternatively constituted an implicit threat and ultimately resulted in Mr. Sonne believing that he might end up on a “security ticket”. When this was first raised, Mr. Sonne had a physical reaction and told Detective Bui that he felt like vomiting and had anxiety issues. Detective Bui testified that he believed these comments were in reaction to his pointing to the title “National Security” printed at the top of the page of the open source RCMP report he was holding but he did not know if Mr. Sonne’s comment was out of theatrics or he actually felt sick which is why he asked him about whether he needed medical attention. Based on my observations of Mr. Sonne on the videotape, I would not say the comment was out of theatrics.

167When Detective Bui went on to review how the investigation had unfolded and the involvement of Intelligence Officers again there appears to have been a physical reaction as Mr. Sonne asked for a drink but said he could not eat until later. Later in the interview when Detective Bui brought up the word “anti-terrorism” there was a physical reaction and Mr. Sonne suddenly mentioned that it was really freezing in the cells. Detective Bui agreed this appeared to be a non sequitur. He did not ask Mr. Sonne if he was freezing during the course of the interview.

168Detective Bui’s strategy of painting himself as the good guy and the National Security branch of the RCMP as “those people” who were looking at Mr. Sonne, clearly resulted in Mr. Sonne fearing that he had been brought in on a security ticket and that his rights did not matter anymore. When he expressed this fear Detective Bui played up his portrayal as the good guy and promised man to man that he would “fight tooth and nail” to ensure Mr. Sonne remained subject to the law of Canada. He could not resist, however, from adding that “those people”, again a reference to the RCMP, were going to be “looking at you.”

169I do not accept Mr. Byrne’s submission that Mr. Sonne’s concern about being on a security ticket was a concern of Mr. Sonne’s own making. Detective Bui admitted that Mr. Sonne’s comment about being brought in on a security ticket did not seem to come out of nowhere for him because he had been bringing up the idea of terrorism, national security, secrecy, secret documents and some nefarious plot. It may not be that Detective Bui planned this specific reaction but he was clearly trying to convince Mr. Sonne of how high level the investigation was and, as a result, enhance the amount of trouble he was in. I do not accept the submission that Mr. Sonne feeling that he might be in even more trouble than he actually was with Detective Bui would have made him more vigilant in the protection of his position given that the result was that he feared that he no longer had his usual rights and freedoms and that any protestations of innocence would be futile.

170Detective Bui also used this strategy to cause Mr. Sonne to believe his wife was also in even more trouble. He suggested that because of comments she had made on Mr. Sonne’s blog she had drawn the attention of “these guys”, referring to the RCMP people who deal with National Security. Unlike the facts in Oickle, this was no idle threat as Mr. Sonne’s wife had been arrested on serious charges and was proceeding with a bail hearing that very day. At this point Mr. Sonne’s resolve clearly started to waiver and Detective Bui emphasized again that Mr. Sonne’s wife would be looking to him as her husband for help and that this was the day that would determine if she got bail or not. At this point Mr. Sonne’s resolve broke and he started to answer Detective Bui’s questions. Detective Bui encouraged him and told him that this was exactly the kind of reasonable explanation he was talking about and that he needed to give some considerable thought to the position that he’d put his wife in because she might get roped into the allegation that was going to be made by the RCMP that he was involved in a much carefully crafted and sinister plot.

171In my view by page 22 of the transcript, Mr. Sonne lost his resolve to remain silent because of the pressure Detective Bui had put on him, even linking his wife to this supposed sinister plot. He accepted the repeated suggestions that he could help her by answering Detective Bui’s questions and offering what Detective Bui might accept as a reasonable explanation, in order to help his wife whom he clearly cared for, to get bail and get out of jail. The inducements were strong enough, particularly when combined with these oppressive circumstances, to raise a reasonable doubt about whether or not the will of Mr. Sonne was overborne and whether he decided to answer Detective Bui’s questions because he chose to do so or rather that he did so in order to gain the benefit offered for his wife.

172I have considered whether or not at times after this, Mr. Sonne’s statement could be considered voluntary, particularly as he did continue to refer to the advice he had received from his lawyer to remain silent and wanting to talk to his lawyer about what Detective Bui was suggesting. Mr. Byrne relies on the fact that late into the transcript, and in particular at various points including pages 53, 55, and 59, Mr. Sonne repeated that he needed to speak to his lawyer. However, Mr. Sonne continued to answer questions and I find this is because of the two strategies employed by Detective Bui. At page 60 he pleaded with Detective Bui that he had to realize that his wife had nothing to do with any of this. Detective Bui continued to tell him that he needed to come up with a strategy to help his wife. Despite what Mr. Sonne said about legal advice, he generally kept answering Detective Bui’s questions. As I have summarized, these offers to help fashion Ms. Peterson’s bail continued and the pressure on Mr. Sonne because of the investigation by the National Security branch of the RCMP continued to be a key strategy of Detective Bui’s. Once his resistance to this strategy broke down, I cannot be satisfied beyond a reasonable doubt that he regained the ability to remain silent and follow his lawyer’s advice. I do not accept the submission of the Crown that considering the entire statement that it is clear that Mr. Sonne was only saying what he wished to say.

173For these reasons, because the two strategies Detective Bui chose to employ continued through the entire interview, and in fact became more and more pointed, as of page 22 of the transcript I believe those strategies became strong enough such that I have a reasonable doubt as to the voluntariness of the statement given by Mr. Sonne to Detective Bui and whether the will of Mr. Sonne to remain silent had been overborne.

Disposition

174For all of these reasons, I find that the Crown has satisfied me beyond a reasonable doubt that the statement given by the defendant to Detective Bui on June 23, 2010 and the portion of the statement given on June 26, 2010, that I have identified, were voluntary and may be tendered as part of the Crown’s case.

Footnotes

1. 1There is a dispute between counsel as to whether or not these interviews constituted taking a “statement” from Mr. Sonne, but there is no dispute that information was provided by Mr. Sonne to the officers. I will refer to the information provided by Mr. Sonne over the course of the interviews by these officers as statements for ease of reference.
2. 2R. v. Sonne, 2011 ONSC 6734
3. 3(1893), 1893 CanLII 65 (FOREP), 6 R. 67, at 70-71 (H.L.)
4. 41994 CanLII 64 (SCC), [1994] 3 S.C.R. 173
5. 51995 CanLII 88 (SCC), [1995] 2 S.C.R. 206
6. 62001 CanLII 6363 (ON CA), [2001] O.J. No. 4646 (C.A.)
7. 72009 SCC 33, [2009] 2 S.C.R. 460, at paras. 38 and 39
8. 8Suberu at para. 42.
9. 9R. v. Moran, 1987 CanLII 124 (ON CA), [1987] O.J. No 794 (Ont. C.A.) at p. 27
10. 10R. v. I.(L.R.) and T.(E.), 1993 CanLII 51 (SCC), [1993] 4 S.C.R. 504, para. 29.
11. 11I.(L.R.) and T.(E.), supra, at para. 30.
12. 12I.(L.R.) and T.(E.), supra, at para. 31
13. 13(2004), 2004 CanLII 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.) at paras. 46-47
14. 14Plaha, supra at para. 47
15. 152007 ONCA 349, [2007] O.J. No. 1784 (Ont. C.A.)
16. 162010 SCC 35, [2010] S.C.J. No. 35 at paras 25 -29, 71.
17. 17(1996), 1996 CanLII 214 (SCC), 2 S.C.R. 463(S.C.C.)
18. 182008 SCC 33, [2008] 2 S.C.R. 235
19. 19R. v. Simpson, 1994 CanLII 4528 (NL CA), [1994] N.J. No. 69, at paras. 36 and 39, (Nfld. C.A.), reversed on appeal on remedy, 1995 CanLII 120 (SCC), [1995] S.C. J. No. 12
20. 202006 CanLII 20227 (ON CA), [2006] O.J. No. 2418 (Ont.C.A.) at paras. 5-6
21. 21Sinclair, supra at para. 42
22. 22Sinclair, supra at para. 65
23. 23R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 48-67
24. 24Oickle, supra at para. 57 (emphasis added).
25. 25R. v. Oickle, at paras. 51-52.
26. 26Oickle, supra at para. 49.
27. 27Oickle, supra at para. 57.
28. 28Oickle, supra at paras. 58-61
29. 29Oickle, supra at para. 56