ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10677H
DATE: 2012/03/28

BETWEEN:

HER MAJESTY THE QUEEN

James Spangenberg for the Crown Attorney

• and -

DAVID JOHN HATCH

Donald H. Crawford, Q. C. and Marcia Hilliard for the accused

HEARD: February 27, 28, 29 and March 1, 2, 2012

RADY J.

RULING

INTRODUCTION

[ 1 ] Mr. Hatch submits that his arrest was unlawful because the police did not have reasonable and probable grounds to arrest him for murder. He submits that any evidence obtained incident to arrest should be excluded pursuant to s. 24(2) of the Charter .

THE FACTS

[ 2 ] Mr. Hatch left Calgary on January 30, 2010 and flew to London, arriving at approximately 8:00 p.m. He checked into Room 913 of the Radisson Hotel on Wellington Road.

[ 3 ] On January 31, 2010, Ms. Roberts came to the hotel at 8:40 p.m. and went to Mr. Hatch’s room. She and Mr. Hatch then left the hotel at 8:49 p.m. to pay for tickets to a concert that Ms. Roberts had purchased on Kijiji.

[ 4 ] Ms. Roberts called her partner, Mr. Miflin, at 9:27 p.m. to say that she would be home soon. She returned to Room 913 with Mr. Hatch, and shortly thereafter he shot her in the left temple. She died instantly.

[ 5 ] Mr. Hatch then sent a number of text messages to his family that were alarming and caused them to believe that he was suicidal. He told his mother in one text message that he had done a bad thing for which he would have to answer to God.

[ 6 ] When Ms. Roberts did not return home, Mr. Miflin contacted the St. Thomas police at l:00 a.m. on February 1, 2010 and reported her missing. The St. Thomas police began an investigation and a number of officers became involved. Officers began to interview family, friends and co-workers of Ms. Roberts. They became aware that Ms. Roberts may have been having an affair with Mr. Hatch, who therefore became a person of interest in Ms. Roberts’ disappearance. This information came from Ms. Creighton, a friend of Ms. Roberts, at about 3:00 p.m. on February 1, 2010 when she was being interviewed by police. She provided Officer Perrin with a package of letters written to Ms. Roberts by Mr. Hatch that Ms. Roberts had given to her for safe-keeping. They also learned that Ms. Roberts had gone to London on January 31, 2010 to purchase tickets to a Mötley Crüe concert. In due course the seller of the tickets was interviewed. He told police that Ms. Roberts had been accompanied by a man when she picked up the tickets. The seller was ruled out as a suspect in Ms. Roberts’ disappearance.

[ 7 ] In the meantime, Officers Lapadat and James were dispatched to speak with Mr. Hatch’s mother. They arrived at her residence at about 3:00 p.m.

[ 8 ] She told police that she had received some alarming text messages from her son. She was very upset. She told Officer James that she thought that her son had done something wrong, she expressed concern about his stability and that Ms. Roberts might be dead.

[ 9 ] While the police were there, they became aware that Mr. Hatch was texting his cousin, Mr. Hoffer. Mr. Hoffer asked for Officer Lapadat’s duty book and wrote in it: “I think he has killed her. He has a gun. He is suicidal.”

[ 10 ] The police contacted the company from which Mr. Hatch operated his cell phone. They learned that his phone had “pinged” off a telephone tower located at Highbury and Bradley Avenues in London, meaning that Mr. Hatch’s cell phone had been used within 1.3 km of the tower. As a result, Officer James called hotels in that general vicinity and at 2:48 p.m. he learned that Mr. Hatch was a guest at the Radisson Hotel on Wellington Road in London.

[ 11 ] The St. Thomas police contacted the London Police Service, which became involved in the investigation. Sergeant Sheppard testified about the information that the London Police dispatch obtained and relayed to its officers. There was frequent communication between the two police departments as information became available.

[ 12 ] Sergeant Sheppard testified that at approximately 4:36 p.m. an “all cars” bulletin was sent, stating that Mr. Hatch may have killed Ms. Roberts, he was armed and he was believed to be suicidal. London Police officers, including the emergency response team, were dispatched to the hotel.

[ 13 ] Officer Diachina testified that at 3:26 p.m. he was made aware by an all cars bulletin of a missing person investigation. He learned of Ms. Roberts’ car make and licence number and that she was believed to be in the company of Mr. Hatch.

[ 14 ] He received updated information from time-to-time and at 4:46 p.m., he received information that Mr. Hatch had killed Ms. Roberts, that he had a handgun and was suicidal. His physical description was relayed.

[ 15 ] Officer Diachina was working with Officer Kukolj and at 4:54 p.m. they received word from dispatch that Mr. Hatch was in Room 913 of the Radisson Hotel. They responded with Code 1, activating lights and sirens, and travelled to the hotel. En route, they were told that Mr. Hatch was in the hotel elevator and was aware the police were coming.

[ 16 ] In the meantime, Officer Hewerdine was on routine patrol when he received a missing person report by an all cars bulletin at 3:30 p.m. He was alerted to the possibility of a “Code 4” suicidal male. Code 4 describes a suspect who is violent, and/or has weapons and caution should be exercised.

[ 17 ] At 4:39 p.m., he received another message identifying Mr. Hatch as the Code 4 male and that he might have been involved in a homicide. At 4:54 p.m. he was dispatched to room 913 of the Radisson Hotel. While en route, he learned that Mr. Hatch was in the lobby of the hotel, heading out to the front. This information had come from the hotel desk clerk who was on the telephone with police.

[ 18 ] Officer Hewerdine arrived at the hotel where he saw an individual matching Mr. Hatch’s description coming out of a nearby gas station and going back toward the hotel. Officer Hewerdine drew his service pistol. Mr. Hatch began to do a slow jog toward the hotel. Officer Hewerdine pointed his firearm at Mr. Hatch and ordered him to the ground. Mr. Hatch complied.

[ 19 ] Officers Diachina and Kukolj arrived at the hotel at 5:04 p.m. They saw an individual matching the description of Mr. Hatch on the ground being detained by Officers Matthews and Hewerdine. At 5:07 p.m., Officer Kukolj handcuffed Mr. Hatch and asked him if he was David Hatch. He responded “yes” and Officer Kukolj told him he was under arrest for murder.

The Law

[ 20 ] The law respecting grounds for arrest is well established. An officer must subjectively believe that grounds exist before he can arrest a suspect. Those grounds must be objectively justifiable as well. The objective assessment cannot be measured with the acuity of hindsight but must take into account the dynamic, potentially dangerous circumstances in which an arrest frequently occurs.

[ 21 ] An arrest is often based on incomplete information or on information provided by third parties. What is critical, however, is whether at the time of the arrest the grounds relied on were objectively capable of meeting the legal standard for arrest. See R. v. Storrey, 1990 125 (SCC) , [1990] 1 S.C.R. 241 ; R. v. Golub (1997), 1997 6316 (ON CA) , 34 O.R. (3d) 743 (C.A.) ; and R. v. Bush , 2010 ONCA 554 .

[ 22 ] The threshold for reasonable and probable grounds is a reasonably based probability, which is something less than a prima facie case: R. v. Storrey , (supra); R. v. Hall (1995), 1995 647 (ON CA) , 22 O.R. (3d) 289 (C.A.) .

CONCLUSION

[ 23 ] When all of the circumstances are considered, I am satisfied that the arresting officers had ample grounds to arrest Mr. Hatch for murder. The St. Thomas police were obtaining credible information from Mr. Hatch’s closest family members who were communicating with him, or had done so in the preceding hours. Based on that information, they logically believed that Mr. Hatch may have killed Ms. Roberts and was about to commit suicide.

[ 24 ] This information was relayed to the London Police Service and several all cars bulletins were sent, culminating in the bulletin at 4:36 p.m. about Mr. Hatch’s involvement in a possible homicide and his potential suicide attempt.

[ 25 ] The officers who initially ordered Mr. Hatch to the ground and the arresting officers acted on this information reasonably and in good faith. Considering all of the circumstances, including the quickly evolving dynamic, the arresting officers had reasonable and probable grounds to arrest Mr. Hatch for murder. It follows that any evidence obtained incident to arrest is admissible.

“ Justice H. A. Rady”

Justice H. A. Rady

Released: March 28, 2012

COURT FILE NO.: 10677H
DATE: 2012/03/28

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN - and – DAVID JOHN HATCH RULING Rady J.

Released: March 28, 2012