ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR 11-40000649-0000
DATE: 20120601

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DELROY ALEXANDER – and – HER MAJESTY THE QUEEN

M. Luft for the Delroy Alexander

P. Leishman for the Crown

HEARD: May 28-29, 2012

THORBURN J.

RULING

(Crown Application to Admit Statements as voluntary and

Defence Application to exclude evidence on the basis of Charter breaches)

1. The Applications

[ 1 ] Among other things, Delroy Alexander is charged with possession of a loaded prohibited firearm and ammunition, possession of cocaine and possession of cocaine for the purposes of trafficking. Cocaine was seized at a roadside take down and the loaded prohibited firearm and ammunition were found upon execution of a search warrant later the same day at 61 Neptune Drive, Unit 105.

The Crown’s Application

[ 2 ] The Crown seeks an order that the following utterances of Alexander (as noted in the notes of Officer Scott Ross) are voluntary and may therefore be entered into evidence at trial:

Q: RTC & C. DYU?

A: Yep

Q: DYWTCALN?

A: No

[Alexander was in possession of a grey Motorola cellphone and $230 in Canadian currency on his person at the time of his arrest]

Q: Is this yours?

A: No, my girlfriend’s.

A: What is the #?

A: 416 894 2392.

Q: Where is she now?

A: At home @61 Neptune #105.

Q: Where’s your cell?

A: With her.

Q: What’s that #?

A: 416 389 8991.

[ 3 ] Alexander claims the last six lines of this exchange should not be admitted as these statements were not made voluntarily.

Alexander’s Application

[ 4 ] Alexander brings a Charter application to exclude this exchange in its entirety along with the exchange Alexander had with Officer Pala after his arrest, when Alexander told Ross that he had lived in Brampton for the last two years. Alexander claims his section 10 Charter right to be informed promptly of the reasons for his detention or arrest and his right to retain and instruct counsel without delay and to be informed of that right were infringed. He claims he was not given the right to counsel and caution. If he was, the right was given in respect of charges of possession of cocaine and not to pursue an investigation into whether Alexander had a firearm and or other drugs at his home.

[ 5 ] Alexander therefore seeks to exclude these statements made by Alexander after his arrest on the grounds that to permit these statements to be introduced into evidence at trial would bring the administration of justice into disrepute.

[ 6 ] A blended voir dire was held during which testimony was given by several police officers on behalf of the Crown. Alexander chose not to testify.

[ 7 ] For the reasons set out below, I find that the utterances were voluntary and do not offend Alexander’s section 10 Charter right.

2. The Facts

Background

[ 8 ] At approximately 7:15 a.m. on August 27, 2010, Officer Frederick provided a briefing for Officers Ross, Long and Pala. Frederick had received information from a confidential informant that Delroy Alexander was dealing drugs and was in possession of a handgun. Frederick testified that he was informed Alexander was a male black with a shaved head who resided at 61 Neptune Drive.

Officer Ross’ Testimony

[ 9 ] Ross testified that he, Long and Pala were told by Frederick at the briefing that Alexander was dealing drugs and was in possession of a handgun. He believes he was also told Alexander was on probation for a firearms offence. A CPIC report made available at the briefing stipulates that Alexander was on house arrest and included the terms of his bail conditions. Photographs of Alexander were also made available at the briefing.

[ 10 ] Ross understood that Detective Constable McNeil was going to prepare a search warrant for 61 Neptune Drive as it was believed to be Alexander’s address.

[ 11 ] Ross testified that he did not go immediately to the Neptune Drive address after the briefing, as he was asked to do a CPIC search for a vehicle located at the address with a license plate BJSJ005. According to the CPIC report, the vehicle was registered to Cindy Delgados-Flores who was believed to be Alexander’s girlfriend.

[ 12 ] Ross testified that he attended at Neptune Drive at approximately 10 a.m. on August 27 th . At approximately 10:35 a.m. Ross observed Alexander leave the rear door of Neptune Drive. He got into the driver’s seat of the Honda vehicle license plate BJSJ005. Alexander drove the vehicle to the rear of 5120 Yonge Street and pulled into the circular driveway. After he stopped the vehicle, a white male entered the front passenger seat of the vehicle.

[ 13 ] At 10:45 a.m. Long decided to “take down” Alexander and the other individual who had gotten into his vehicle. Long parked just in front of Alexander’s vehicle and Ross parked just behind it thus preventing him from leaving.

[ 14 ] Both Ross and Long got out of their vehicles. Ross yelled “police”.

[ 15 ] Alexander’s attention was focused on Long. Ross observed Alexander put a clear package with white stuff he believed to be cocaine from between his legs down to the floor of the vehicle.

[ 16 ] Ross testified that the officers’ intention was to arrest Alexander for breach of his recognizance. Ross approached the driver’s side of the vehicle while Long approached the passenger side. Long dealt with the passenger and Ross removed Alexander from the vehicle, placed him face down and passed him over to Pala. (Pala did not recall this.)

[ 17 ] Ross arrested Alexander for breach of his recognizance. A minute or so later, Ross picked up the package filled with a white substance and advised Alexander that he was also charged with possession of cocaine for the purpose of trafficking.

[ 18 ] Ross testified that when he arrested Alexander and cautioned him he used the standard wording he kept in his wallet. As he read out the standard wording, Ross testified that Alexander exhibited no difficulty understanding the charges or the caution. Moreover, Alexander had seen Ross remove the package from the vehicle. Ross says he asked Alexander if he understood and he said he did. Ross asked Alexander if he wanted to call a lawyer and he said he did not. No threats were made to Alexander, and he was not intimidated.

[ 19 ] Ross testified that Frederick and Pala were within ten feet when he read Alexander his rights.

[ 20 ] Ross’ notes refer to advising Alexander of this right to counsel but do not say the rights were read from a paper found in his wallet.

[ 21 ] Thereafter Ross says he asked Alexander whose cellphone he had in his front pocket. Alexander replied that it was his girlfriend’s. He asked where Alexander’s girlfriend was. Alexander replied that she was at home at 61 Neptune Drive Unit 105. Alexander was asked where his cellphone was and replied that his girlfriend had it and then was asked and gave his cellular telephone number.

[ 22 ] Ross said Pala was present while he was taking notes and that he relied on Pala’s notes for the telephone numbers given by Alexander.

[ 23 ] Shortly thereafter the cellphone that had been in Alexander’s possession rang. It rang five or six times and the number on display was the number Alexander indicated was the telephone number on Neptune Street. Ross seized Alexander’s keys to his car and other things and gave them to Long. These keys were used to open the door of 61 Neptune Drive Unit 105.

Officer Pala’s Testimony

[ 24 ] Pala testified that Alexander had already been arrested and was in handcuffs when he arrived on scene. He stated that he first looked at Long and the suspect he was dealing with before turning his attention to Ross who was with Alexander. Pala said he observed Alexander showing his driver’s license and advising that he had lived at Red Cedar Circle in Brampton for the last two years. While this note was taken after he noted Long’s actions regarding the other suspect, there is no note of the precise time of this utterance. Ross has no such note of this utterance in his notes.

Officer Frederick’s Testimony

[ 25 ] Frederick testified that he conducted the briefing at 7:15 on August 27, 2010. He attended 61 Neptune Drive and after showing the superintendant of the building photographs of Alexander and his girlfriend Delgado-Flores, he was told by the superintendant that Alexander and Delgado-Flores lived at 61 Neptune Drive Unit 105.

[ 26 ] Frederick testified that he was circling in his vehicle at the time of the “take down”. Two minutes later he started making telephone calls from his vehicle. He testified that while he was with Ross at the car, Pala was with Alexander.

[ 27 ] Later that day, a search warrant was executed at 61 Neptune Drive Unit 105 and a loaded firearm with ammunition was found in the bedroom.

3. The Issues

[ 28 ] The issues in this case are:

• Was Alexander’s exchange with Ross as set out above voluntary?

• Was Alexander’s section 10 Canadian Charter of Rights and Freedoms , Part I of the Constitution Act , 1982 , (“ Charter ”) right infringed?

• If his Charter right was infringed, should the evidence be excluded on the basis that it would bring the administration of justice into disrepute pursuant to section 24(2) of the Charter ?

The Crown Position

(a) The Crown’s position is that Ross advised Alexander of his right to counsel and cautioned him about the use of any statements given to police. He was told by Alexander that he did not wish to speak to a lawyer at that time;

(b) Alexander’s statements were voluntary;

(c) the statements did not breach his section 10 Charter rights; and

(d) if there were a breach of Alexander’s section 10 Charter right, the evidence should not be excluded pursuant to section 24(2) of the Charter as to exclude it under these circumstances would bring the administration of justice into disrepute.

Alexander’s Position

(a) Alexander’s position is that Ross did not advise Alexander of his right to counsel or caution him about the use of any statements given to police and the statements he made were therefore involuntary;

(b) if Ross advised Alexander of his right to counsel and cautioned him, it was in relation to his arrest for possession of cocaine and possession for the purpose of trafficking. Ross should have given Alexander new advice regarding his right to counsel and caution as it pertained to the search for drugs and a firearm at his residence. The questions asked elicited information that was of assistance in the search warrant to be conducted later that day and Ross addressed his mind to that. As such, his section 10 Charter right was infringed; and

(c) the evidence should be excluded pursuant to section 24(2) of the Charter as to include it under these circumstances would bring the administration of justice into disrepute.

4. Analysis and Conclusion

Voluntariness

[ 29 ] The onus is on the Crown to satisfy the court beyond a reasonable doubt that the statements made by Alexander to Ross that his girlfriend was at home at 61 Neptune Drive unit 105, that she had his cellphone and that his cellphone number was 416 389 8991 were made voluntarily.

[ 30 ] In order to do so, the Crown must satisfy the court beyond a reasonable doubt that Alexander made a meaningful choice to speak to state authorities. The court must consider all the relevant factors, including the police caution. [1]

[ 31 ] In this case, Ross testified that he arrested Alexander for breach of his recognizance, possession of cocaine and possession of cocaine for the purpose of trafficking and informed Alexander of his right to counsel and caution before the conversation in question took place. Ross recorded in his notebook that he gave Alexander his right to counsel and caution and asked him if he understood. Alexander confirmed that he understood and then asked Alexander if he wished to speak to a lawyer and Alexander said no. Ross testified that he read the standard wording for the right to counsel and caution that he keeps in his wallet. He had the wording in his wallet on the day he testified and read out that standard wording at the time he testified. Ross testified that Pala and Frederick were nearby when he did so.

[ 32 ] Pala testified that when he arrived on scene, Alexander was already in handcuffs and Ross and Alexander were engaged in a discussion that he could not hear. He went to Long who was involved with another suspect first and wrote down a description of the other suspect. He testified that he was not solely focused on Alexander and did not observe him at every moment.

[ 33 ] Frederick testified that he was in his vehicle circling in his vehicle at the time of the “take down”. Two minutes later he started making telephone calls from his vehicle. He testified that while he was with Ross at the car, Pala was with Alexander.

[ 34 ] Alexander did not testify on these Applications.

[ 35 ] There is no evidence to contradict Ross’ clear and unequivocal assertion as substantiated by his notes, that he provided Alexander with his right to counsel and caution before asking him these questions. Moreover, I found his evidence to be credible and measured. While it is true that Pala’s notes are not as complete as those of Ross, Pala was an inexperienced note taker (he had only been a note taker once before, a couple of years earlier) and he failed to record some of the statements found in Ross’ notes. I also note that Pala conceded that he was not entirely focused on what was transpiring between Ross and Alexander as he was also taking note of what was taking place with Long and the other suspect at the scene of the take down.

[ 36 ] There is also no evidence of threats or promises, oppression, lack of operating mind, or police trickery. For these reasons, I find beyond a reasonable doubt that the statement is voluntary.

The Right to Be Informed (Section 10 of the Charter )

[ 37 ] Section 10 of the Charter provides that, “Everyone has the right on arrest or detention,

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right...”

[ 38 ] The purpose of s. 10(b) is to give a person detained a reasonable opportunity to obtain legal advice, if he or she chooses, before proceeding to elicit information. [2] Not every police encounter will trigger an individual's right to counsel under s. 10(b) and the constitutional rights recognized by section 10 are not engaged by delays that involve no significant physical or psychological restraint. [3] However, as stated in R. v. Manninen , [4] once the right is triggered, police must “cease questioning or otherwise attempt to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel.”

[ 39 ] In R. v. Sawatsky [5] , Doherty J.A. for the Court of Appeal held that “the detained person must at least know why she is detained and why the police wish to question her or involve her in some other investigative process”. He referred to the comment made by Wilson J. in R. v. Black, at p. 12 that, “An individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy.” That risk cannot be measured without knowledge of the reason for the detention and the subject matter of the police inquiries.

[ 40 ] If the extent of a detainee’s jeopardy changes, the right to counsel should be restated so that the detainee can decide whether to exercise the right to counsel. The risk may change either because the offence changes to a significantly more serious one, or because the investigation turns to a different and unrelated offence [6] . Either change triggers the obligation to restate the detainee's section 10(b) right.

The Exclusion of Evidence (Section 24(2) of the Charter )

[ 41 ] Section 24(2) of the Charter provides that where evidence was obtained in a manner that infringes or denies any Charter right, the evidence shall be excluded if it would bring the administration of justice into disrepute.

[ 42 ] The court must assess the effect of admitting the evidence on society’s confidence in the justice system having regard to:

(i) the seriousness of the Charter -infringing state conduct;

(ii) the impact of the breach on the Charter -protected interests of the accused; and

(iii) society’s interest in the adjudication of the case on its merits. [7]

[ 43 ] The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights count for little, bringing the administration of justice into disrepute.

[ 44 ] The court must determine whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion .

[ 45 ] The reliability of the evidence and its importance to the prosecution’s case are relevant factors to consider. So too is the public interest in truth-finding. [8]

[ 46 ] In my view the questions, “where is she now”, “where is your cell?” and “what’s that number” asked by Ross at the time of the take down do not offend section 10 of the Charter because:

(a) Ross was not changing the focus of the investigation and pursuing an investigation to lead to discovery of new offending conduct. At best his questions were exploratory;

(b) the information given by Alexander as to his home address is information the police can properly ask for at the time a person is detained; and in any event,

(c) this was a volatile situation involving a roadside take down of a person police had been told could be dangerous.

[ 47 ] Alexander had just been advised that he had been arrested on charges of possession of cocaine and possession of cocaine for the purpose of trafficking and cautioned. There were no inducements made nor was Alexander intimidated.

[ 48 ] This is not a case like that in Sawatsky [9] (cited by Alexander) where police embarked on an investigation of new offences brought up by the detainee and did so before restating the section 10(b) rights in respect of those new and different offences before the detainee gave incriminating evidence. At most there were three questions that were purely exploratory in nature. As such, I find there was no need to advise Alexander a second time of his right to counsel.

[ 49 ] I further find that given Pala’s uncontradicted statement that he arrived on scene after Alexander had been arrested and was thereafter distracted by watching Long, I am satisfied that the statement made by Alexander that he lived at Cedar Circle in Brampton for the last two years was not elicited before he was read his Charter rights and there is therefore no Charter breach. I reiterate that asking Alexander for his identification and address upon arrest does not offend his Charter rights.

[ 50 ] If there was a Charter breach, I do not believe the Charter breach was serious or deliberate. I believe that admission of these statements would not, on balance, bring the administration of justice into disrepute. Therefore, I find that even if Alexander’s right was infringed, the statement ought not to be excluded from evidence in this proceeding.

[ 51 ] The public has an interest in seeing a determination of the charges on the merits, especially in cases involving gun related offences. The public also has a vital interest in a justice system that is above reproach, especially where the penal stakes for an accused are high. The balancing required by s. 24(2) of the Charter is qualitative and therefore not capable of mathematical precision. [10]

[ 52 ] For these reasons, the Crown’s Application to permit the introduction of the questions and answers between Ross and Alexander as set out above is granted. Alexander’s Application to exclude these statements and the statement made by Alexander to Pala that he lived in Brampton is denied.

Thorburn J.

Released: June 1, 2012