ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-03774G
DATE: 20120920

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – RITCHIE JONES NG CHEONG PUN Applicant

K. Hutchinson, for the Crown
Aswani Datt, for the Applicant

HEARD: August 7-9, 2012

RULING

Gilmore J.

overview

[ 1 ] The accused Applicant is charged with one count of sexual assault on V.L.. The assault is alleged to have occurred on April 19, 2010.

[ 2 ] The accused gave a videotaped statement on April 20, 2010. A preliminary hearing was held in this matter on May 4, 2011. The matter is set for a two-week jury trial commencing September 24, 2012.

[ 3 ] At this pre-trial hearing the Applicant sought a stay of the charge or alternatively an exclusion of certain evidence. The Applicant submits that his rights pursuant to Sections 7 , 10(b) and 12 of the Canadian Charter of Rights and Freedoms (the “Charter”) have been infringed.

[ 4 ] The Crown seeks an evidentiary ruling as to the voluntariness of the videotaped statement given by the accused on April 20, 2010.

[ 5 ] Both matters were heard together by way of a blended voir dire on the consent of counsel.

FACTUAL BACKGROUND

[ 6 ] On April 19, 2010 Constable Gill was working the night shift in Markham. He was working in a uniformed capacity for York Regional Police. At 9:24 p.m. he was briefed by Detective Elliott concerning an alleged sexual assault by the accused who was 19 years old at the time. Gill was given a picture of the accused and told the grounds for the charge. On Detective Elliott’s instructions, Gill attended at the accused’s home at C[] Avenue. He arrested the accused at 9:39 p.m. for sexual assault. After his arrest the accused was handcuffed, searched incident to arrest and read his rights to counsel at 9:42 p.m. by Gill. Gill testified that he read the rights to counsel and caution to the accused from the back of his notebook. The accused indicated at the time that he understood and wished to speak with a lawyer and call Legal Aid.

[ 7 ] The accused was then transported to 5 District Station in Markham by Gill and arrived at the station at 9:58 p.m. The accused was described by Gill as cooperative.

[ 8 ] Upon arrival at the station the accused was handed over to Staff Sergeant Chantiam where he was given a second pat down search as per normal booking protocol. He provided his name and other information to Chantiam and was then placed in Criminal Investigation Branch (“CIB”) room 2. Chantiam lodged the accused in a cell after the criminal investigation was completed. The cell contained a concrete bed (heat controlled) with a sink and toilet. Chantiam did not recall that the accused complained he was cold although blankets were available at the station.

[ 9 ] The accused contacted Duty Counsel DeJesus at 10:18 p.m. He spoke to him in private for approximately seven minutes. The call was completed at 10:23 p.m. Gill had no further dealings with the accused.

[ 10 ] Detective Elliott became involved as the officer in charge of this investigation. He was working as a detective with CIB at the time. On April 19, 2010 he was working the afternoon shift and at 6:30 p.m. received a call that the complainant was at the front of the station. Elliott was not a trained sexual assault investigator at that time. He attempted to locate one in another district but was unsuccessful. Ultimately he assigned the interview of the complainant to Constable David Duke who was a former CIB member and qualified sexual assault investigator.

[ 11 ] Elliott then arranged for the arrest of the accused with other officers in attendance. He attended at the accused’s home and began to take steps towards obtaining a search warrant for the home to collect evidence. He asked the other occupants of the home to leave and sealed off certain areas of the home. He later obtained the warrant and seized certain items including a sleeping bag and blanket.

[ 12 ] Elliott testified that at that point he had decided he wanted to seize the accused’s clothing and obtain a penile swab. He knew there was an allegation of intercourse. He wanted to find out if the complainant’s DNA was on the accused’s clothes or penis. He did not discuss his plans with the arresting officer or any other officers at the scene. He had never investigated a case in which a penile swab was taken. In cross-examination Elliott agreed he likely should have told Gill about his plans for the accused such that Gill could have more closely monitored the accused.

[ 13 ] After the accused was arrested Elliott turned his mind to the possibility of obtaining a search warrant for the penile swab, however, he decided not to pursue a warrant because he felt that seizing the clothing and sample was part of his search incident to arrest. He was also concerned that the DNA evidence would have been compromised if he waited for a warrant; he felt he needed to seize the evidence right away. Elliott testified that he did not inquire as to how long it would have taken to get a warrant.

[ 14 ] Elliott admitted that, despite never investigating a case involving a penile swab or strip search he did not feel it necessary to consult with the staff sergeant at the station or another more senior officer for advice. Further, he did not advise Fowlow or any officer of his grounds for the seizure. There was nothing in his notes about his grounds for the search and seizure. He maintained that he had an independent recollection of his grounds.

[ 15 ] While Elliott testified that he was concerned that any possible DNA evidence could have been wiped off or contaminated by urination he neither monitored the accused for this nor did he speak to Fowlow or any other officer about monitoring the accused to preserve the evidence. He did not make any inquiries at the station about whether the accused had gone to the bathroom although he conceded that records to that effect were available.

[ 16 ] Constable Fowlow became involved when he received a call from Detective Elliott at 8:25 p.m. to advise of the allegations relating to the accused. Fowlow worked in forensics at the time and was mandated to respond to calls related to sexual assaults, homicides, fatal accidents and other circumstances which may require forensic involvement. At 9:55 p.m. Elliott called Fowlow again and asked him to attend at 5 District Station. He told Fowlow he wanted to seize the accused’s clothing and take a penile swab from him. Fowlow and Detective Angela Ducharme arrived at 5 District at 10:55 p.m. They met with Elliott who gave them background on the case.

[ 17 ] At 11:20 p.m. Fowlow and Elliott went into CIB room 2 where the accused had been lodged. The room was described by Fowlow as a 6 x 6 room with no windows and a table and bench bolted to the floor and wall. There was a metal door which locked from the outside. The door had a small window with a sliding privacy panel.

[ 18 ] Elliott described to the accused who Fowlow was, that Fowlow would be taking a swab of his penis and that the accused would need to remove his clothing in order for the swab to be taken. The accused indicated he understood and was then directed by Fowlow to remove his clothes. At this point, only the accused, Fowlow and Elliott were in the room. The door was closed. Neither officer had a weapon. There were no cameras in the room. According to the testimony of Elliott, it is normal procedure for two officers to be present during the taking of samples in order to protect the officers from allegations by an accused of inappropriate comments or behaviour on the part of the officers.

[ 19 ] The accused then removed his clothing in the presence of Fowlow and Elliott. He was naked other than his socks. Fowlow seized the accused’s clothing and put it into clean bags. As the accused was not circumcised he was directed to pull back the foreskin of his penis and a swab of the penis from the base of the shaft to the head of the penis was taken by Fowlow with a Q tip. The accused was then given a white Tyvek suit (referred to as a “bunny suit”) to put on in the place of his clothes. Fowlow testified that everything was done by 11:27 so the removal of clothing and swab took seven minutes. Fowlow estimated that the accused was undressed for no more than one to two minutes. Neither officer made any physical contact with the accused. Contact was made only through the Q Tip for the swab.

[ 20 ] Fowlow testified that there was no conversation with the accused during the taking of the swab other than the accused indicating that it was embarrassing. Fowlow agreed with the accused.

[ 21 ] Fowlow was asked why the accused was not permitted to disrobe in private and put the Tyvek suit on first and then have the swab taken. His response was that he had a concern about the sample from the penis being moved, disturbed or wiped off. Since the swab was for DNA evidence of the complainant it was important for the investigation that the evidence be preserved.

[ 22 ] Once the swab procedure was completed the accused was left in the CIB room while Elliott called his parents. Although an adult accused, Elliott often calls parents in these situations to avoid missing person’s reports. Elliott had no further dealings with the accused until February 2012 when the accused was asked to attend Central Services to give a blood sample. This was arranged through his counsel. The accused signed a consent to give the sample and attended as arranged. During the hearing defence counsel made it clear that his client gave the sample to avoid the necessity of getting a warrant but that the admissibility of the sample was in issue.

[ 23 ] Detective Sergeant Chris Dolson became involved with the investigation in this matter after receiving emails from Elliott that required follow up. Although Elliott was the officer in charge, Dolson noted that reports did not indicate that the accused had been interviewed. Dolson did not recall whether Elliott told him at that point that the accused had been strip searched and swabbed nor did he recall Elliott mentioning anything about exigent circumstances or possible contamination issues. His evidence was that even if he had been given information about the strip search or swab that would not have made any difference on how he proceeded with respect to obtaining a statement from the accused.

[ 24 ] Dolson attended at the District 5 office and at 8:02 a.m. on April 20, 2010 he took the accused from the cells to the CIB interview room. He knew that the accused had been in the cells for some time (he was not sure how long) and agreed that he should have been interviewed sooner.

[ 25 ] Dolson had a conversation with the accused in the interview room that last two to three minutes. He agreed that he did not check to confirm that the accused had been given his rights and to counsel and caution previously. There was no videotaped recording of this conversation. Referring to his notes, Dolson testified that he introduced himself to the accused and asked if he had spoken to a lawyer. The accused replied that he had. He told Dolson he had eaten breakfast and felt cold. Dolson asked him if he had had a chance to tell his side of the story and the accused said no. Dolson reminded the accused that anything he wanted to say would be videotaped to protect his rights. Dolson then left the accused in the interview room and went to the room next door to set up the videotape equipment. At 8:30 a.m. Dolson took the accused into the video room for a statement.

[ 26 ] While Dolson agreed that non-videotaped interviews of an accused were frowned upon by courts, he insisted that he did not ask the accused about the allegations during the interview. The purpose of doing it was to see how the accused was doing, what his demeanour was and whether he needed anything prior to the videotaped interview.

[ 27 ] Dolson testified that although the accused did not specifically say he wanted to give a statement, he was calm, cooperative and Dolson had the impression that the accused wanted to give his version of events. Dolson confirmed he did not threaten the accused or make any offers to him prior to the statement being given. While Dolson agreed that during the statement the accused said he did not want to answer certain questions Dolson’s impression was that he wanted to continue talking. He denied that telling the accused this was an “opportunity” to give his side of the story could be interpreted to mean that the accused would derive some benefit from giving the statement. Dolson’s view was that it was a chance for the accused to tell the truth. The accused was returned to his cell at 10:48 a.m. on April 20 th .

(Decision continues exactly as in source.)

C.A. Gilmore J.

Released: September 20, 2012