COURT FILE NO.: 1591/11
DATE: 20120924
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
AKINO McLEISH and TODD ANTHONY GRAHAM-GREY
Michael Robb and Aniko Coughlan, for the Crown
K. Marley, Counsel for the moving party, Todd Anthony Graham-Grey
HEARD: August 17, 2012
DESOTTI, J.
[1] This is both a Crown application for an order that a portion of the respondent’s statements to the police during an interview be admitted at trial as voluntary and a defence counsel application under section 7, 10 (b) and 24 (2) of the Charter of Rights and Freedom seeking to exclude from evidence the same interview of the respondent (the applicant in defence counsel’s application) by Detective Constable Whelpley.
[2] These blended applications are stated, by the Ontario Court of Appeal, to be avoided because of course each application bears a different onus. In the case of defence counsel, his onus is to establish on a balance of probability that there has been a breach of the accused’s Charter rights. The issue of voluntariness of any statement or interview places the burden on the Crown to establish beyond a reasonable doubt the voluntariness of the interview or statement.
[3] In these unusual circumstances and since neither party objected to the process, I will look first at Crown counsel’s application to affirm the voluntariness of the interview. In fairness to defence counsel, there has not been any serious attack on the issue of the voluntariness of the interview with respect to any inducement or threats on the part of the police.
[4] The applicant is charged with possession of a controlled substance (oxycodone) for the purpose of trafficking, conspiracy to commit the indictable offence of robbery with a firearm, breach of probation by possessing non-medically-prescribed drugs, and breach of probation by failing to keep the peace and be of good behaviour
A. Voluntariness of the Interview
[5] The evidence of the accused is that he was propelled onto the floor when the door to the apartment was smashed open. He was then administered punches and kicks by officer Vosburg while on the floor and when finally placed at the kitchen table his head was smashed twice onto the table when Constable Vosburg did not like a response the accused gave him to an inquiry about the identity of the co-accused, Akino McLeish.
[6] The accused also indicated that he was man-handled and bounced into the wall of the stairway to the apartment as he was led down those same stairs to the cruiser. He was asked certain questions by officer Vosburg while in the cruiser and after a caution was given by the same officer. The officer indicated that the accused nodded his head in the affirmative in response to the caution. The officer concluded that the accused was indicating that he wished to speak to counsel.
[7] Officer Vosburg acknowledges that he struck the accused at least three times on the side of the face or head during a struggle with the accused, as the officer was in the process of trying to handcuff the accused and the accused was not cooperating with this endeavour. He does not admit to smashing the accused’s head on the table or to banging the accused against the stairway wall on their way to the cruiser.
[8] Nevertheless, for reasons that will become clearer in the analysis of defence counsel’s section 10 (b) application, any answers given to the officer during the questions posed in the cruiser are to be excluded pursuant to section 24 (2) of the Charter of Rights and Freedoms as no opportunity was given to the accused to consult with counsel pursuant to section 10 (b) of the Charter of Rights and Freedom.
[9] I do not accept that a strip search, given the discovery of a gun on the co-accused, nor the general statement that there was a power imbalance and an ’air of compulsion’ to be indicative of a non-voluntary interview. Again, I am only concerned with that portion of the interview that was shown in court and not to the entire interview, which I have not read but which is part of the Crown’s filing.
[10] As indicated in my analysis under defence counsel’s s. 10(b) application, there was no issue with the accused’s understanding that he had the right to retain and instruct counsel and he understood that he could avail himself of this opportunity. This understanding I inferred from his nodding his head in the police cruiser, his “yup” to the booking sergeant and his previous attendances at the Sarnia Police Services where he had previously been charged with criminal offences and had attended in a private room made available to him to consult with counsel. There was no indication by the accused in his testimony that he was coerced or intimated by Constable Vosburg, the booking sergeant the strip search or Detective Constable Whelpley.
[11] As I indicate in my analysis of the accused’s attendance with Detective Constable Whelpley, I inferred from his spontaneous acknowledgement to the officer that he understood the charges and that he was most eager to immediately indicate his concern and denial of any knowledge of any gun held by the co-accused, Akino McLeish.
[12] In these circumstances then, I find that the portion of the interview of the accused with Detective Constable Whelpley as viewed in the courtroom has been proven by the Crown as a voluntary statement beyond a reasonable doubt.
[13] On the issue of the section 7 and 10 (b) application brought on behalf of the accused by defence counsel and the request to exclude that portion of the interview between the accused and officer Whelpley, I will begin by reviewing the facts and then my analysis of those facts and the applicable law.
B. The Facts
[14] A number of officers attended at an apartment in Sarnia to conduct a drug raid. They were in possession of a warrant to search the apartment. One of the officers battered down the apartment door and six other officers entered the apartment. They found six suspects in the apartment.
[15] The accused, Todd Graham-Grey, was physically man handled by Constable Vosburg, as the officer believed he was uncooperative and avoiding being restrained with handcuffs. A number of blows were administered to the accused and eventually he was placed at the kitchen table with his hands handcuffed behind his back.
[16] This officer indicated that at some point a different accused was found with a loaded gun and the atmosphere in the apartment, from the officer’s point of view, became highly charged. Nevertheless, at approximately 9:56 PM officer Vosburg gave all six accused, who were in various locations in the apartment, a blanket “rights to counsel” and caution.
[17] The accused was eventually brought down some stairs that led to the apartment to a cruiser and the officer again advised the accused of his “right to counsel” and this time the accused nodded his head. The officer has acknowledged that he asked the accused further questions about the identity of the party with the firearm after this affirmative head nodding. He also may have advised the attending female officer that the accused had nodded his head when asked if he wanted to speak to counsel.
[18] The transporting officer, Constable Paquette, did not advise the booking officer Sergeant Scott Clarke that the accused had indicated by nodding that he wanted to speak to counsel. Nevertheless, Sergeant Clarke asked the accused whether he wished to contact a lawyer and the “Lock-up Admittance Record” indicated that the accused replied “not really”.
[19] The pertinent two questions in the “Lock-up Admittance Record” are found as questions two and three as follows:
- Do you understand that you have the right to retain and instruct counsel/Legal Aid without delay?
Graham-Grey: Yup.
- Do you wish to contact a lawyer now?
Graham-Grey: Not really.
[20] As per the preliminary hearing transcript, Sergeant Clarke determined that this response by the accused meant “no” or “not right now”, and no further inquiries were made of the accused with respect to contacting a lawyer. In Regina v. Hebert at paragraph 32, the Supreme Court of Canada indicated that the police are not only to inform the offenders of their right to counsel, but also to ensure that the purpose and extent of that right is understood:
[21] The police are required to advise an individual who has been detained of their right to retain and instruct counsel. They must ensure that the individual understands that right. If the police or the Crown wish to rely upon a waiver of that individual’s right to counsel, it is incumbent upon them to ensure that such a waiver is unequivocal and made by the individual operating with a free will and mind.
[22] In the defence counsel’s application, there is obviously no reference to what the accused understood or didn’t understand about the whole booking process. However, in the course of the voir dire, the accused did take the witness stand and indicated that this was not the first time he had been booked in with the Sarnia Police Services and indicated that on five or six previous occasions he had availed himself of a room that was provided for him to contact a lawyer.
[23] In these circumstances and from his response to Sergeant Clarke’s inquiry, I conclude from the accused’s answer “Yup” and his previous attendance with the Sarnia Police Services that there was no problem in the accused’s understanding of his right to retain and instruct counsel.
[24] The accused was stripped searched and then at 11:45 PM, the accused was summoned by Detective Constable Whelpley to the interview room. The accused appeared on the video tape and in my review of the transcript immediately began to discuss the issue of firearm found in the residence. In fact, before Detective Constable Whelpley had read the accused’s rights to retain and instruct counsel without delay, he had indicated “spontaneously” to the officer in reply to whether he knew why he was under arrest:
Graham-Grey: Uh for the Oxy it’s but I don’t understand the gun charge cause yah.
Officer Whelpley: Okay.
Graham-Grey: Like none of us knew that that guy had that and stuff so I don’t know what the heck that but I.
[25] A little later Detective Constable Whelpley then read him the following caution:
So it’s my duty to inform you. You have the right to retain and instruct counsel without delay, you have the right to telephone any lawyer you wish, you also have the right to free advice from legal advice lawyer, if you are charged with an offence you may apply to the Ontario Legal Aid plan for assistance okay and that’ll put you in contact with legal aid duty counsel for free legal advice, do you understand that.
Graham-Grey: Uh not right now no.
The interview then continued and is the subject matter of this application.
C. Analysis
[26] The Crown attorney does not wish to introduce the entire interview but only that portion of the interview up to when the accused indicated to the officer in reply to his question:
Officer Whelpley: Lemme ask you a question did you write that:
Graham-Grey: No, no I don’t know what I’m just done here I, I’ll call a lawyer then I’m not saying nothing else no more man I’m done.
[27] Counsel has provided me with a comprehensive series of cases that they rely on as indicative of their respective positions. In reviewing same and given the initial general caution in the apartment, I can quickly conclude that this blanket caution with rights to counsel did not meet the 10 (b) requirements under the Charter of Rights and Freedoms.
[28] While I suppose that this type of blanket statement may, in some other context, be of some probative value, absent some acknowledgement from a targeted accused that he or she has heard and understood this caution/ rights to counsel, the threshold duty imposed on police forces by the Supreme Court of Canada in R. v. Therens and R. v. Manninen have not been satisfied by this type of unfocused caution. I am fortified in this conclusion as the accused indicated when in the witness stand at the voir dire that the accused did not remember hearing this caution from officer Vosburg.
[29] The duty thus mandated by the Supreme Court of Canada makes it clear that a detainee must be given a reasonable opportunity to exercise this right to retain and instruct counsel without delay and secondly, the police must refrain from attempting to elicit evidence from the detainee until the detainee has had a reasonable opportunity to retain and instruct counsel.
[30] I can also conclude that as well-intentioned as this caution may have been, for reasons expressed, the lack of response and acknowledgement renders same as meaningless.
[31] At the police cruiser, officer Vosburg, again specifically cautioned and read to the accused his right to counsel. The accused acknowledged his understanding of this caution by nodding his head in the affirmative. The police officer inferred that the accused’s head nodding was not that he understood the caution but that he wanted to retain and instruct counsel. Constable Vosburg indicated that he advised Constable Paquette of this request. Constable Paquette does not remember those instructions but acknowledges that she may have received same from Constable Vosburg.
[32] Regardless, Constable Paquette did not convey this request to the booking Sergeant. However, the booking Sergeant did read to the accused his right to retain and instruct counsel and the accused from past brushes with the law understood that a specific room would be provided. He answered this inquiry with the response “not really”.
[33] With respect to this response and the failure of Sergeant Clarke to make any further inquiry from the accused, together with the earlier head nodding affirmation of the accused signifying his intention to retain and instruct counsel, counsel for the defence submits that this shortcoming in the process constituted a denial of the accused’s section 10 (b) right to retain counsel without delay.
[34] Alternatively, defence counsel submits that this response “not really” constituted a non-waiver of the accused’s section 10 (b) rights or at the very least was an equivocation that cannot be corrected by the subsequent right to counsel and caution given to the accused by Detective Constable Whelpley and the accused’s response of “uh not right now no”.
[35] In R. v. Bartle, Justice Lamer of the Supreme Court of Canada summarized the duties of a police officer under section 10 (b) of the Charter of Rights and Freedoms at page 192 as follows:
To inform the detainee of his or her right to retain and instruct counsel without delay and the existence and availability of legal aid and duty counsel;
If a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances);and
To refrain from eliciting evidence from the detainee until he or she has had reasonable opportunity (again, except in cases of urgency or danger),
[36] Justice Nolan in an unreported decision of this court in R. v. Baldwin had an unusual situation before her. The evidence of two officers was different with respect to whether the accused had wanted a lawyer. Officer Bell’s evidence was that the accused was given an opportunity to speak to a lawyer when he advised him that there was a 1-800 number to phone, while officer Comartin’s evidence was that the accused had indicated that he wanted to speak to a lawyer.
[37] Later when the accused was asked at the police station if he wanted to speak to a lawyer, both detectives indicated that the accused said “no” to the availability of speaking to a lawyer. However, in the course of the interview the accused Baldwin indicated that he wished to speak to a lawyer and later during the interview process on a number of occasions Mr. Baldwin was unsure about whether he should speak to a lawyer or was at the least ambivalent about exercising this right.
[38] The learned trial judge in these circumstances concluded that Mr. Baldwin never explicitly waived his right to counsel and that there was a positive duty on the police to clarify whether Mr. Baldwin did or did not wish to speak to a lawyer. Relying on R. v. Grant as her guide, the learned trial judge concluded that the statements of the accused given at the interview should be excluded under section 24 (2) of the Charter of Rights and Freedoms.
[39] On the facts in this case, the accused nodded his head to one of the officers who believed this was an affirmation that the accused wished to speak to a lawyer and conveyed this indication to the transporting officer who did not convey this positive indication to the booking Sergeant. The booking Sergeant asked the question about whether the accused understood that he had the right to retain and instruct counsel and the accused acknowledged that he understood that he had this right by saying “Yup”, but then in response to the inquiry about whether he wished to contact a lawyer answered “not really”.
[40] The booking Sergeant then place the accused in a holding cell where he was strip searched and then led to an interview room by Detective Constable Whelpley. I conclude that in the interview room at this juncture, the summarized duties of the police as reflected by Justice Lamer in the Bartle decision were adhered to by Detective Constable Whelpley.
[41] Unfortunately, this determination at this juncture does not answer the question whether the accused had earlier waived his right to counsel, or was afforded an opportunity to speak to a lawyer?
[42] Put it another way, the accused, Todd Graham-Grey, on at least two occasions prior to Detective Constable Whelpley’s formal caution and right to counsel, was informed that he had those rights. Was the accused’s failure to seek out an opportunity to consult with a lawyer as a result of a failure of the police to make a more definitive inquiry or because, by the accused’s own response to the inquiry, the police properly concluded that the accused had waived his right to retain and instruct counsel?
[43] Does the “not really” response of the accused and the failure of Constable Paquette to advise the booking Sergeant that in response to Constable Vosburg’s caution that the accused nodded his head, constitute a failure by the police to provide the accused with an opportunity to retain and instruct counsel? Is this “not really” response to the question “Do you wish to contact a lawyer now?” an equivocal response requiring Sergeant Clarke to illicit a more definitive waiver or is it as Sergeant Clarke concluded an indication that the accused’s response meant no or not right now?
[44] In R. v. Prosper, the Supreme Court of Canada indicated that where an accused first asserts his or her rights to counsel, there is a greater onus on the state to ensure that the accused is acting in a voluntary manner. At paragraph 44 the Supreme Court of Canada described this rule as follows:
Given the importance of the right to counsel, I would also say with respect to waiver that once a detainee asserts the right there must be a clear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown. Further the waiver must be free and voluntary and it must not be the product of either direct or indirect compulsion. (This is sometimes called a “Prosper Warning”)
[45] However, despite this apparent high standard, the courts have also established a rule that, where an accused is not reasonably diligent in asserting his/her right to counsel, the police may not be constrained by the duty to cease investigation until counsel is contacted. In R. v. Turney (of the Alberta Superior Court) in reference to the Supreme Court of Canada’s decision in R. v. Tremblay, the court referenced the following passage at page 567 of that decision as follows:
Generally speaking, if a detainee is not being reasonably diligent in the exercise of his rights, the correlative duties set out in this court’s decision in Manninen, imposed on the police in a situation where a detainee has requested the assistance of counsel are suspended and are not a bar to their continuing their investigation and calling upon him to give a sample of his breath.
[46] While I do not consider the “not really” response by the accused to Sergeant Clarke as an equivocal waiver that in other circumstances might require some further inquiry, I do conclude that in these circumstances there was a positive duty by the Sergeant to query the previous indication of the accused of his desire to retain and instruct counsel. Obviously, Sergeant Clarke was not informed of this silent communication (the nodding) of the accused to Constable Vosburg in response to the inquiry of the accused of his right to retain and instruct counsel.
[47] However, had he been so informed and had the either the officer who gave the caution or the transporting officer advised the Sergeant of this silent affirmation, then there would have been a positive duty on the booking Sergeant to make a further inquiry to illicit, at the very least, a more definitive waiver. The “not really” in this context would have required more than just a notional determination that “not really” meant “no, not at this time” as the Sergeant testified he believed was the meaning behind this expression.
[48] While I can accept the explanation and conclusion of the Sergeant that he subjectively believed this response to mean as he has testified, an objective view of this response by the accused when provided with the information of the previous indication of an affirmative response by the accused to his right to retain and instruct counsel, would have rendered a positive obligation on the part of the booking Sergeant to explore the accused’s expression “not really”.
[49] For example, something to the effect such as:
Mr. Graham-Grey, I understand you earlier indicated to Constable Vosburg your desire to retain and instruct counsel. Are you now waiving this intention? Is this what you mean by your response “not really”?
[50] In addition, contrary to the submission of defence counsel, I do not see anything untoward in Detective Constable Whelpley’s attendance with the accused at his cell and then his escort of the accused to the interview room. Nor do I see anything devious or incongruous in the Detective’s subsequent caution and in advising the accused of his rights to counsel. However, this caution did not undo the failure to inquire of the accused, in more definitive way at an earlier point in time, whether the accused desired an opportunity to speak to counsel.
[51] Ultimately, since no opportunity was afforded the accused to speak to counsel (what the Supreme Court of Canada in Grant indicated was the “implementational stage”), I conclude that the accused’s section 10 (b) rights were violated and a breach of the Charter of Rights and Freedom occurred. Therefore, it is now necessary to conduct an analysis of whether that portion of the interview sought to be introduced by Crown should be excluded pursuant to section 24 (2) of the Charter of Rights and Freedoms.
[52] The Supreme Court of Canada has now determined in R. v. Grant precisely the approach to take when considering the provision of section 24 (2) of the Charter of Rights and Freedom. The court must balance the following factors:
The seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct).
The impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little).
Society’s interest in the adjudication of the case on its merits.
[53] In considering the first line of conduct, the court is to assess the nature of the state conduct that led to the determination that a Charter breach has occurred. As indicated, the more severe and deliberate that conduct, the greater is the need for the courts to dissociate themselves from the conduct by excluding the evidence so obtained in order to preserve public confidence in the rule of law.
[54] In assessing the conduct of the state, the court should determine whether the infringement was minor or reckless and wilful. As stated at paragraph 96 of this judgment:
If an individual is clearly informed of his or her choice to speak to the police, but compliance with section 10 (b) was technically defective at either the informational or implementational stage, the impact on the liberty and autonomy interests of the accused in making an informed choice may be reduced.
[55] Subject to the aforementioned qualifier or modifier with respect to section 10 (b) violations, the Supreme Court also indicated that in most cases the statements would generally be excluded.
[56] In the circumstances of this case, by every objective factor, the accused clearly understood his rights to retain and instruct counsel. In the accused’s ‘head nodding’ response to Constable Vosburg’s Charter caution, I conclude that this was merely a reflection of the accused’s understanding of the caution and from Constable Vosburg’s point of view, an indication that he wanted to retain and instruct counsel.
[57] Regardless of what the accused actually intended by his ‘head nodding’, when the accused responded “Yup” to the booking Sergeant’s inquiry about whether he understood that he had a right to retain and instruct counsel/Legal Aid without delay, this was a further affirmation of his understanding of his rights to retain and instruct counsel.
[58] Furthermore, the accused testified that he understood the process from his previous five or six times in which he was in the same position, that is, having been charged for certain criminal offences and then been presented to a booking Sergeant. The accused testified at the voir dire as follows:
Q. And you’re familiar with the, the telephone room that’s off the booking in area that you can use to call a lawyer?
A. Yes.
Q. And you never asked to do that when you were there?
A. No. And normally that’s the first I do normally.
Q. And so but you’re familiar with the process, right? So you know that’s a normal thing to do but you didn’t speak up and say, I want to speak with my lawyer, right?
A. No.
[59] In short, there is no doubt or confusion that the accused knew precisely that he was entitled to instruct and retain counsel but for whatever reason chose not to exercise that opportunity when it was presented to him. I will have more to say about this choice when I review what occurred prior to the caution during the interview with the accused by Detective Constable Whelpley.
[60] In reviewing a number of decisions as reflected in my own research, there is a significant thread of factual similarity with precisely what Justice Nolan experienced in R. v. Baldwin. If an accused at any time in the arrest process indicates that he/she desires to speak to counsel, then any change of mind in the exercise of that right must be explored carefully and expressly by the investigating officers in order that they are unequivocally assured that the accused has waived his right to retain and instruct counsel.
[61] This determination was precisely the result in R. v. Keeshig where the accused changed his mind at the police station and consented to an interview after initially indicating that he wanted to speak to counsel. The court concluded that the officers did nothing to coerce or induce this change of position and thus his oral statement was determined to be voluntary and that his section 10 (b) rights were not infringed by this unequivocal change of mind. However, when he changed his mind back again and desired to speak to counsel in course of his videotaped statement, then any statement made in the course of this taping was rendered inadmissible.
[62] In R. v. Jackman the court concluded that when an accused responded “no not right now” to the question whether she desired to retain and instruct counsel while detained in her apartment during a drug bust that by every objective standard this meant that the accused may wish to speak to counsel but at a more opportune time. Her statement to the police thereafter that she was the only tenant of the apartment was determined to be inadmissible.
[63] There is no question on the facts in this case that the accused was given his section 10 (b) Charter right but I concluded that there was a technical defect because of the earlier “head nodding’ on the part of the accused when he first was cautioned by Constable Vosburg. The “implementational” stage may have been thus “technically defective”.
[64] Nevertheless, I readily conclude that none of the officers, that is Constable Vosburg, Constable Paquette or Sergeant Clarke purposely or recklessly acted in bad faith. Most importantly, the accused was appropriately given his section 10 (b) Charter of Rights option but chose not to exercise same. Absent any clairvoyance or mental telepathy on the part of Sergeant Clarke, he never was informed of an earlier ‘head nodding’ occurrence but presumed reasonably that the accused did not want to speak to counsel when he responded “not really”.
[65] Turning back to the interview itself and before Detective Constable Whelpley cautioned the accused, Mr. Graham-Grey quickly and without prompting stated the following:
Graham-Grey: Uh for the Oxy its but I don’t understand the gun charge yah.
Officer Whelpley: Okay.
Graham-Grey: Like none of us knew that that guy had that and stuff so I don’t know what the heck that but I.
[66] As the Supreme Court of Canada alluded to in Grant, often times without inducement or coercion, an accused “spontaneously” makes utterances or statements before any caution can be administered. In the circumstances that unfolded in this matter, there is a clear inference that even though the accused knew and understood that he had the right to retain and instruct counsel and had previously exercised this right, he chose to speak to the officer both before and after the caution.
[67] His eagerness to speak to the officer, I infer, was to convey to the officer in the clearest way that he had nothing whatsoever to do with either the knowledge or presence of the gun on the other individual found in the apartment.
[68] In completing the three stage approach in Grant, I conclude firstly that the Charter breach was minor and only technically defective and thus on the least serious end of the spectrum. To disallow the interview because of this technical breach, I determine would be to undermine public confidence in the rule of law.
[69] Secondly, while the impact of not excluding the interview may have some serious impact on the accused, this is not the appropriate consideration. I have concluded that the breach was technical, fleeting and in no way, in the ultimate circumstances, prevented the accused from exercising his Charter right under section 10 (b) to retain and instruct counsel. He chose not to exercise this right or avail himself of this opportunity although he was made of aware of these rights on three occasions!
[70] Thirdly, societal interest in the truth seeking function of a criminal trial would be better served in these circumstances by the admission of the evidence. On the facts in this case, the accused was not compelled or tricked into making a statement and there is nothing on the facts that led to the statement or interview that causes me to conclude that the admissibility of that portion of the interview sought to be introduced by the Crown would bring the administration of justice into disrepute.
[71] For the aforementioned reasons, I find that there has been a technical breach of the Charter under section 10 (b) but I conclude, for reasons expressed, that the portion of the interview so shown in the courtroom at the juncture when the accused raised as issue about consulting with counsel shall not be excluded pursuant to section 24 (2) of the Charter of Rights and Freedoms.
Orignal Signed by “Justice J.A. Desotti”
The Honourable Mr. Justice J.A. Desotti
Released: September 24, 2012
CASES CONSIDERED
R. v. Sinclair 2010 SCC 35, [2010] S.C.J. No. 35 (S.C.C.); R. v. Ramos [2010] O.J. No. 2645 (O.C.J.); R. v. Grant 2009 SCC 32, [2009] S.C.J. No. 32 (S.C.C.); R. v. Manninen, 1987 67 (SCC), [1987] 1 S.C.R. 1233; R. v. Ross, 1998 833 (SCC), [1998] 1 S.C.R. 3; R. v. Black, 1989 75 (SCC), [1989] 2 S.C.R. 138; R. v. Prosper, 1994 65 (SCC), [1994] 3 S.C.R. 236; R. v. Baldwin, as yet unreported February 3, 2012 per Nolan, J. (Ont. S.C.J.); R. v. Turney, 2000 ABPC 206; R. v. Turcotte, 2008 ABPC 16; R. v. Tremblay, 1987 28 (SCC), [1987] 2 SCR 435; R. v. Shaw, 2001 ABPC 84; R. v. Jackman, 2008 ABPC 201; R. v. Hebert, 1990 118 (SCC), [1990] 2 SCR 151; R. v. Luong, 2000 ABCA 301; Clarkson v. The Queen, 1986 61 (SCC), [1986] 1 SCR 383; R. v. Keeshig, [1999] O.J. No. 1272 (OCJ (Gen.Div.)); R. v. Shaw, 2001 ABPC 84; R. v. Therens (S.C.C.); R. v. Bartle
COURT FILE NO.: 1591/11
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
AKINO McLEISH and TODD ANTHONY GRAHAM-GREY
RULING
DESOTTI, J.
Released: September 24, 2012