ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-10-2017
DATE: 20120106

BETWEEN:

HER MAJESTY THE QUEEN – and – TIMOTHY CARTER and DONALD DODD Defendants

Jennifer Holmes and Roger Dietrich, for the Crown

Colin D. Adams and Anthony LaBar, for Timothy Carter
Gordon D. Cudmore and Dale Ives, for Donald Dodd

RULING ON THE ADMISSIBILITY OF TIMOTHY CARTER’S STATEMENTS

Pomerance J:

INTRODUCTION

[ 1 ] Timothy Carter is charged, along with his co-accused, Donald Dodd with two counts of murder. The Crown alleges that the victims, Peter Kambas and Vaios Koukousoulas were murdered in Mr. Carter’s garage and that their bodies were transported from the scene in Mr. Carter’s vehicle. Both the garage and the vehicle were burned shortly after the victims disappeared at the end of June 2008. The bodies were not found until several months later in December 2008.

[ 2 ] On June 30, 2008, the police began investigating the circumstances of the fire and the fact that the victims were missing. Attention was focussed on Mr. Carter. Police discovered drugs inside his house. On July 7, 2008, he was arrested for possession of the narcotics as well as possession of stolen property. While he was in custody following his arrest, two officers from the major crimes unit interviewed him, telling him that he was a suspect in a “missing persons investigation”. He was interviewed twice, once on July 7, 2008 and once on July 8, 2008. Shortly after the July 8th interview, he was released.

[ 3 ] Several months later, in December 2008, the bodies of Mr. Kambas and Mr. Koukousoulas were found. Mr. Carter was arrested for the murders. Shortly after his arrest, on January 27, 2009, he was interviewed by the police and provided a videotaped statement.

[ 4 ] The defence seeks to exclude all three statements made by Mr. Carter to the police. With respect to the statements of July 7 and 8, 2008, it is alleged that the police infringed Mr. Carter’s rights under s. 10(a) of the Charter. It is said that the police deliberately concealed from Mr. Carter the fact that he was a suspect in a murder investigation. By telling him that he was a suspect in a “missing persons investigation”, the police minimized the appearance of jeopardy facing Mr. Carter and failed to abide by their constitutional obligation to advise him of the reason for his detention. It is said by the defence that the police acted in bad faith and that those statements must therefore be excluded under s. 24(2) of the Charter.

[ 5 ] With respect to the statement made on January 27, 2009, the defence argued that there was a significant nexus between that statement and the statements made in July. As it was put by the defence, the January statement was “tainted” by the earlier breach of s. 10(a). On that basis, it was argued that the January statement must also be excluded. The defence argued, as well, that the Crown had failed to prove the voluntariness of the January statement beyond a reasonable doubt [1].

[ 6 ] The Crown argued that all of the statements were admissible at trial. It is the Crown’s position that the Charter was not infringed and that, if it was, the evidence should not be excluded under s. 24(2). The Crown asserts that the voluntariness of each of the statements has been proved beyond a reasonable doubt.

[ 7 ] I have determined that the statements taken by police on July 7 and 8, 2008 were made in circumstances that infringed Mr. Carter’s rights under s. 10(a) of the Charter and, further, that those statements must be excluded under s.24 (2) of the Charter.

[ 8 ] I have determined that the statement made by Mr. Carter to the police in January 2009, following his arrest for the murders, is admissible at trial. The January statement is not sufficiently linked to the July utterances to affect its admissibility. The voluntariness of that statement has been proved beyond a reasonable doubt.

[ 9 ] I have already provided a brief oral ruling setting out these conclusions. These are the reasons in support of my conclusions respecting the July 2008 statements. I will refer to the evidence only as it is relates directly to the legal issues on this voir dire.

BACKGROUND AND RELEVANT EVIDENCE

The Interview of July 7th

[10] Mr. Carter was arrested on July 7, 2008. He was searched and lodged in a cell. He spoke with his lawyer between 11:15 a.m. and 11:17 a.m. He was fingerprinted at 12:27 p.m. He spoke to his lawyer again between 3:26 p.m. and 3:32 p.m. At 7:27 p.m., he was escorted to interview room #3 where he was interviewed by Detective St. Louis and Detective Providenti. He was interviewed from 7:27 p.m. until 7:50 p.m.

[11] At the beginning of the interview, Detectives Providenti and St. Louis told Carter that he was a suspect in a missing persons investigation. They asked him if he understood that and he said that he did. Mr. Carter was provided with a secondary caution. He was asked if he wanted to talk to his lawyer “in regard to this [the missing person investigation]” and he responded: “I will in the morning”. When again asked: “Do you want to talk to your lawyer right now in regards to this?”, Carter responded: “No”.

[12] The police then began asking Carter about the “two people that are missing”. They did not refer to these people by name when they first asked Carter about them. He said that he did not know them and that he knew nothing about it. Early on, Carter stated: “My lawyer’s already told me – informed me do not talk to nobody. That’s it”.

[13] The officers began presenting items of evidence to Carter. They suggested that they might find DNA from the missing persons in Carter’s vehicle. They presented him with dentures seized from his burnt SUV vehicle, thought to belong to one of the victims. They played a portion of the police interview of Adelino Moreira, in which Moreira made statements that incriminated Carter. As the interview progressed, the questions became more pointed. At one point, Detective St. Louis referred to the fact that Carter was “the last guy to see Pete alive”. Shortly after that, Carter said “Grab the lawyer and we’ll talk”. He asserted that he wanted to speak to his lawyer. The interview stopped at this point.

[14] At 7:50 p.m., Mr. Carter was returned to his cell. Efforts were made to contact his lawyer but were unsuccessful that night. Carter was able to speak to his lawyer the next morning between 9:01 a.m. and 9:05 a.m.

The Interview of July 8th

[15] After Mr. Carter spoke to his lawyer on the morning of July 8, 2008, he was once again placed in an interview room with Detectives St. Louis and Providenti. The second interview commenced at 9:08 a.m. The officers asked Mr. Carter if he had spoken to his lawyer and he responded: “I did and he told me personally to tell you to fuck off and don’t say nothing to you”.

[16] The officers then began asking questions of Mr. Carter. They put to him that he was the “last person to see Peter alive”. At one point, Detective St. Louis said to Mr. Carter:

Tim do you think we need the bodies to charge somebody with murder? What do you think? What do you think? (p.12)

A bit later on in the interview, Detective Providenti said to Mr. Carter:

Next time you talk to Frank [Carter’s lawyer] ask him if uh we need two dead bodies to charge someone with murder and see what he tells you. …

[17] Right after that the officers left the room for a few minutes. When they returned they reviewed the charges on which Mr. Carter had been arrested: possession of a stolen pickup truck and a stolen carpet, possession of cocaine and breach of a recognizance. Detective St. Louis told Mr. Carter that those charges “are minor compared to, to what we’re investigating eh?”

THE ISSUES

Section 10(A) of the Charter

[18] The central issue to be determined is whether the police were obliged to advise Mr. Carter that he was a suspect in a murder investigation when they interviewed him on July 7 and 8, 2008. At the outset of the July interviews, the officers told Mr. Carter that he was a suspect in a “missing persons investigation”. They did not tell him that he was under investigation for homicide. It was argued, on behalf of Mr. Carter, that the officers deliberately minimized his jeopardy so as to lull him into making a statement to the police. The officers testified that this was not the case. They insisted that they did not mention a homicide investigation because they did not, at that time, believe that a homicide had occurred.

[19] It is necessary to determine just what the state of police knowledge and belief was in July 2008.

[20] I will begin with the testimony of the officers on the voir dire. Detectives St Louis and Providenti were each questioned at some length about this issue. Both testified that, at the time of the interviews on July 7 and 8, 2008, they neither knew nor believed that the missing persons had been killed. As Detective St. Louis put it:

I didn’t know a homicide had occurred. I didn’t believe that a homicide had occurred. I had nothing to substantiate – I had no body, I had no cause of death and I – it wasn’t clear for me. I did not have grounds to arrest him for murder.

[21] He testified that he did not have Mr. Carter in for investigation of a criminal offence, but rather just for a missing persons’ investigation. He testified that it was possible that the victims had been killed but that this was merely one of many possibilities. He insisted that he “didn’t have anything objective to say Mr. Kambas was dead, was murdered, a cause of death” (p.65). Therefore, Mr. Carter was simply told that the police were investigating missing persons.

[22] Detective Providenti similarly testified that he did not believe that the victims were dead at the time of the July 2008 interviews. In cross-examination, it was put to the officer that he was investigating a homicide and he disagreed:

Q. I’m gonna make a suggestion to you at the outset that when this began – when this interview began, the first one which was on the 7th – it doesn’t matter. It’s - it’s a similar outline there. You went in there with certain things in your mind, the first of which was that you were investigating a homicide. Am I right or wrong?

A. You are wrong

Q. You were investigating a potential homicide? Right or wrong?

A. Wrong.

Q. And you wanted to have Mr. Carter speak to you correct?

A. I wanted to interview him to get information on – on two missing persons.

p.49:

Q. Are you saying that you didn’t have every belief that these two people were dead on July the 7th?

A. No. I had – I had every belief that they’d turn up.

Q. I’m sorry?

A. …just – I had every belief that they would turn up just like the – the other person that I’driver mentioned in – in –chief that had turned up. There’s no reason to believe that they wouldn’t turn up.

p.52:

Q. You didn’t think you were investigating a homicide and these people were dead?

A. I wasn’t investigating a homicide sir.

[23] The officers’ testimony contrasts to other evidence on the voir dire, which suggests that the police knew full well that they were investigating homicides in July 2008. In the week leading up to the interviews, police obtained a search warrant and a consent wiretap authorization. These orders issued on the strength of the police belief that the missing persons had been murdered and that Mr. Carter was involved in the crimes.

[24] On July 3, 2008, Sgt. Brad Hill applied for and obtained a search warrant authorizing the search of Mr. Carter’s 2001 GMC Jimmy Vehicle for “blood, gasoline of [sic] other fire accelerant, identification of Peter Kambas and Vaios Koukousoulas”. The information to obtain the warrant (“ITO”) asserted that the search would afford evidence with respect to the commission of the offences of “first degree murder, section 235(1) of the Criminal Code of Canada; Arson, section 434 of the Criminal Code of Canada; and Assault, Section 266 of the Criminal Code of Canada”. The ITO set out the officers’ grounds for believing that the offence of first degree murder had been committed and that a search of Mr. Carter’s vehicle would afford evidence of that offence. The document was 28 pages long. A convenient summary of the officer’s grounds was set out in a section entitled “Background of Investigation”. For ease of reference it will be set out below:

Background of Investigation

1. On Sunday June 29, 2008, 10:46 pm, Uniformed Officers of the Windsor Police responded to 1642 Moy, Windsor, in relation to a working fire. It was found at that time the entire unattached garage was burned as well as a GMC Jimmy SUV. The vehicle which had been plated with Ontario License # AMTW 726 is a 2001 GMC Jimmy the registered owner is Timothy Carter (born 1976 Sep. 20) of 1642 Moy, Windsor.

2. As the investigation unfolded it was learned Timothy Carter owned the property and the vehicle that was destroyed. Officers learned that there had been a fight in the rear yard of 1642 Moy in the early morning hours of June 29, 2008.

3. Information is that Panayotis (Peter) KAMBAS and Vaios KOUKOUSSOULAS took a cab from there (sic) residence at 1210 Dougall to 1642 Moy on June 29, 2008 at 2:52 am and have not been seen since.

4. Mary O’Connell is aware that her boyfriend Peter went to this address and when she went looking for him there she was advised no one was home. She went to the rear and looked in the garage through a small hole and saw an injured person lying on the cement floor and she heard Peter’s voice as well as Vaois voice and he sounded injured.

5. As officers were searching for person who resided at 1642 Moy they had conversation with Adelino Moriera and he was found to be in possession of 17 grams of cocaine and he was subsequently arrested and found to have $1040 in cash on him.

6. Mary O’Connell reports that Moriera had stolen $1,100 from Peter earlier and Kambas was going to 1642 Moy to settle this disagreement.

7. The neighbours of 1642 Moy heard a fight taking place and one called police but later cancelled the call as it appeared to be over.

8. Cherrie Acrey the girlfriend of Adelino Moriera states that Moriera told her that they killed two people at 1642 Moy and that he had cleaned up the crime scene. He told her that Tim Carter’s Uncle Tom Carter and the old guy (believed to be Peter) were killed. It was later learned that Tom Carter was still alive and has been found and interviewed.

9. The homeowner Tim Carter could not be found until July 1, 2008, he had left town. On July 1, 2008 he and his common law Krystal Hamelin were found and they were subsequently arrested for Possession of stolen property as they were using a stolen pickup truck.

10. While this investigation is extremely complicated the simple facts are there was an Arson Fire at 1642 Moy, Windsor on January 29, 2008, where a garage and a vehicle were destroyed. Also the Windsor Police are investigating two missing persons under extremely suspicious circumstances. The belief of the writer is that Peter Kambas and Vaios Koukoussoulas were killed in the garage at 1642 Moy and the scene was burned to cover up the evidence of a murder. It is presumed that the vehicle may have been used to move the body and this may be why it also was burned up.

11. The investigation is ongoing and witnesses continue to be interviewed and attempts to locate the missing men or their bodies is ongoing.

12. It is believed and known that there are at least two gas cans in the rear yard at 1642 Moy as well it would seem there may be a can of Mace dropped by Adelino Moreira that he was searching for after the assault. It is my belief that because Tim Carter was seen wiping his hands he may have transferred evidence into the residence of 1642 Moy.

13. It is my belief that this entire investigation stems from drug trafficking and is directly related to the drug culture. Until such time that Peter Kambas or Vaios Koukoussoulas are located it is believed they have been killed and their bodies disposed and evidence of the crime remains at 1642 Moy, Windsor. A search Warrant was applied for on July 3, 2008, and is currently with a Justice. I further believe that if the vehicle was used to transport the victims after their death there will be blood evidence in the vehicle.

[25] A few days later, on July 6, 2008, Sgt. Hill applied for and obtained a consent authorization to intercept communications of Timothy Carter, Adelino Moreira and an undercover officer. The affidavit described an investigative plan whereby police would arrest Mr. Carter for an offence unrelated to the homicide. He would then be placed in the same cell area as Adelino Moreira and the undercover officer. The officer, who consented to the interception, would wear a device that would record the ensuing conversations.

[26] The affidavit sworn in support of the application stated that the order was being sought in relation to three offences: first degree murder, arson and assault. The affidavit consisted of 39 pages setting out the officer’s grounds for belief. These grounds were summarized at pp. 6-7, in a section entitled “History and Chronology of the Investigation”. This section contained the same paragraphs as those excerpted from the ITO above, as well as two additional paragraphs. The new paragraphs reflected two additional items of evidence. First, the search of Mr. Carter’s vehicle led police to discover a set of dentures believed to belong to Peter Kambas. Secondly, the police had spoken to Krystal Carter, Timothy Carter’s girlfriend. She gave a statement to the police on July 4, 2008 in which she stated, among other things, that after Mr. Carter learned about the fire in the garage, he told her: “Don’t worry. Leno took care of it. Its taken care of. You don’t have to worry about [Pete Kambas]. You’ll never have to worry about Pete threatening yours and the baby’s life again”. Krystal Carter also told the police that she heard events in the garage through the baby monitor. This evidence was summarized in para. 14 of the affidavit and set out in more detail in paras. 157 to 172.

[27] In both the ITO and the affidavit, Sgt. Hill asserted that he believed on reasonable grounds that Peter Kambas and Vaois Koukousoulas had been killed in Mr. Carter’s garage and that their bodies had been disposed of. The grounds set out in the ITO and affidavit provided a compelling basis for believing that the victims had been murdered and that Timothy Carter was implicated in the crimes.

[28] How does this relate to Detectives St. Louis and Providenti? They did not prepare the applications for the search warrant and authorization. Nor did they, according to their testimony, read the ITO or affidavit. While these officers may not have prepared or read the documents, I find it difficult to accept that they were entirely unaware of the charges that were under investigation. The officers were deployed to carry out the vitally important task of interviewing a suspect. It is unlikely that they would be kept in the dark about the true status of the investigation and the nature of the offences. One can presume that these matters were discussed at meetings of the investigative team, some of which were attended by the interviewing officers. One would expect that officers about to interview a suspect would have a firm and up-to-date grasp of the evidence and the issues at the heart of the investigation.

[29] The conduct of the interviews would suggest that the interviewing officers were aware that they were conducting a homicide investigation. The officers accused Mr. Carter of being “the last person to see [the victims] alive”. At one point, Detective Providenti asked Mr. Carter: “where are the bodies”? The officers insinuated on two occasions that they did not need to find the bodies in order to charge Mr. Carter with murder. The officers declined to mention homicide when cautioning Mr. Carter; however, many of their questions and comments were predicated on the assumption that the victims were dead.

[30] In addition, the officers conducting the interview referred to many of the same items of evidence relied upon by Sgt. Hill to obtain the search warrant and consent authorization. They referred to the fact the offences were heard over a baby monitor, and that dentures believed to belong to Mr. Kambas were found in the back of Mr. Carter’s burnt out truck. The dentures – which were physically presented to Mr. Carter – served as compelling evidence that Mr. Kambas had been met with a violent end.

[31] During their testimony on the voir dire, the police witnesses tried to downplay the significance of the evidence that was in their possession in July 2008. Even Sgt. Hill, the informant and affiant on the applications for judicial orders, seemed reluctant to admit that he had grounds to believe the victims had been murdered. Sgt. Hill testified that the police were involved in a missing persons investigation and that he “had no idea” whether the victims were dead. When asked why he referred to the offence of first degree murder in the ITO and affidavit, he stated that, in a “worst case scenario”, the missing persons might have been killed and “I think its only fair to advise the justice of the peace that the worst case scenario is that they’re dead”. He stated that: “to err on the side of we listed first degree murder as the worst possible case scenario of what could happen”.

[32] Warrants and wiretap authorizations cannot be obtained on the basis of a “worst case scenario” or a “possibility” of an offence. Section 487 and s. 184.2 of the Criminal Code require, at a statutory minimum, that there be reasonable grounds to believe that the offence listed in the warrant or authorization has been (or will be) committed. The police are only permitted to obtain these orders and invade citizens’ privacy where the interests in law enforcement outweigh individual interests in privacy. The police must meet the standard of credibly based probability (Hunter v. Southam, 1984 33 (SCC), [1984] 2 S.C.R. 145). If that standard was not met, then the police were not entitled to obtain a search warrant and consent authorization.

[33] Sgt. Hill was an officer experienced in the drafting and obtaining of judicial orders. I must presume that he was well aware of the standard governing warrants and wiretap authorizations. My sense was that the officer was trying to distance himself from his earlier sworn assertion that he believed on reasonable grounds that the victims had been murdered and their bodies disposed of. For example, when it was put to him that the dentures found in Mr. Carter’s burned out pickup constituted a “strong material piece of evidence”, he disagreed, stating:

I mean, its dentures. Its not like teeth that were – were implanted in your head and have pulled out your head. Dentures can fall out. Dentures could be taken out. Dentures could be thrown out.

[34] As one might expect, Sgt. Hill characterized the denture evidence very differently in his application for a consent authorization. The significance of this evidence, and other items of evidence, was likely not lost on Sgt. Hill or the officers that interviewed Mr. Carter.

[35] There are other indications that Detective Providenti believed the missing persons to be dead when he interviewed Mr. Carter on July 7 and 8, 2008. Detective Providenti interviewed Krystal Hamelin on July 4, 2008, three days before the first meeting with Mr. Carter. He described the case to her as a triple homicide. (A third person, Tom Carter, was still missing at that point and it was believed that he might be dead as well). Detective Providenti told Ms. Hamelin that the missing persons were likely dead – that there was no reason to think that they were alive.

[36] The following are excerpts from that exchange:

KH [Krystal Hamelin]: Maybe [the missing persons] got in a fight and, they’re just not – don’t want to be around.

FP [Frank Providenti] : Maybe. And we’re hoping that. We truly hope that. But it doesn’t look that way…cause nobody’s telling us where they are. Nobody’s helping us out. So we’re only led to believe that they’re dead cause this is very unusual for these people…not to be heard from, not to be seen from . The girlfriend of uh Peter, uhmm, came to us and said: My boyfriend’s been killed and he’s been killed at Tim’s house. This isn’t just something that we just kick you up off the street so if you have any information now’s the time to tell us. If you had anything to do with this then I would be quiet. I wouldn’t tell us a thing. [emphasis added]

[37] In a later portion of the interview, Detective Providenti referred to the case as a “triple homicide”. P.26:

KH: You don’t know that he’s dead so you can’t

FP: I have no other – I have no reason to believe that he’s alive. We’ve been trying. We’ve been working around the clock trying to find these guys and we’ve got people sitting in, in interview rooms not saying anything. How old are you again?

KH: twenty-five

FP: twenty-five years old and you’re hooked up in this cus-possible triple homicide.

[38] In addition, on July 15, 2008, just seven days after the interviews with Mr. Carter, Detective Providenti arrested Donald Dodd, Mr. Carter’s co-accused, for the murders of Peter Kambas and Vaois Koukousoulas. The Crown intervened and determined that charges should not be laid at that time. What is significant, however, is that Detective Providenti subjectively believed that he had grounds to arrest Mr. Dodd for murder. No additional evidence had been gathered by investigators between July 8 and July 15th. The only change in circumstance was the passage of an additional seven days in which the victims were not found. This arrest, and the earlier interview of Krystal Hamelin, support the inference that Detective Providenti believed the victims to have been murdered when he interviewed Mr. Carter.

[39] On the whole of the evidence, I find it likely that, on July 7 and 8, 2008, the interviewing officers did believe that the missing persons had been murdered. If the officers did believe that the victims were dead, that they had been murdered, and that Mr. Carter was implicated in the crimes, they were constitutionally obliged to inform Mr. Carter that he was a suspect in a homicide investigation, not an innocuous inquiry into “missing persons”.

[40] If I am wrong, and the interviewing officers did not know that the investigation was focused on murder, this is something that they ought to have known. Other officers within the Windsor Police service believed, on cogent grounds, that the victims had been murdered. The Windsor Police Service was conducting a murder investigation. It is this institutional knowledge that must set the standard for the necessary Charter warning. The police cannot sidestep constitutional obligations merely by keeping certain strategically placed officers uninformed. This is not acceptable as a deliberate strategy. Nor is it acceptable as a product of systemic negligence. In either instance, it must be found that the suspect’s rights to be informed of his jeopardy under s. 10(a) was infringed.

[41] Finally, the obligation under s. 10(a) was triggered even if the police did not have reasonable grounds to believe that the victims had been murdered. On the strength of the evidence presented to Mr. Carter during his interview, there was certainly a reasonable suspicion to believe that the victims had been murdered. Mr. Carter was being detained in relation to that suspicion (even though he had been arrested for other offences). To the extent that the detention was linked to suspected homicides, Mr. Carter had the right to know that. He was entitled to be cautioned on the offence of homicide whether he was arrested on reasonable grounds or simply detained on reasonable suspicion (see R. v. Suberu, 2009 SCC 33 (), [2009] S.C.J. No. 33). He was entitled to be given that information before he waived his right to counsel at the beginning of the July 7, 2008 interview.

[42] The police were under no obligation to charge Mr. Carter with murder at the time of the interviews. They were entitled to wait until the bodies were found before laying formal charges. However, if the police wished to question Mr. Carter about the murders under investigation, they had to tell him what he was really being questioned about (see R. v. Borden, 1994 63 (SCC), [1994] S.C.J. No. 82).

[43] For these reasons, I find that the conduct of the police interviews on July 7 and 8, 2008 violated Mr. Carter’s rights under s. 10(a) of the Charter.

SHOULD THE STATEMENTS BE EXCLUDED?

[44] Having found a violation of s. 10(a), I must now consider whether the evidence should or should not be excluded under s. 24(2) of the Charter. I will apply the approach set out by

the Supreme Court of Canada in R. v. Grant, 2009 SCC 32 (), [2009] 2 S.C.R. 353, which mandates the following three inquiries:

1. The first inquiry, concerned with the seriousness of the Charter-infringing conduct by the state;

2. The second inquiry, concerned with the impact of the breach on the Charter protected interests of the accused; and

3. The third inquiry, concerned with society’s interest in an adjudication on the merits.

The First Inquiry: Seriouness of the Charter-Infringing State Conduct

[45] The first set of factors is concerned with the seriousness of the Charter-infringing state conduct. In Grant this inquiry was described as follows by McLachlin C.J. and Charron J., in paragraph 72:

The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severed or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

[46] In this case, the state misconduct is the failure of the police to properly inform Mr. Carter of his jeopardy before asking him questions about two homicides. Section 10(a) – the right to be informed of the reason for one’s detention – is an important right. It ensures that a citizen confronted by the state is aware of his or her jeopardy and can make informed decisions on that basis. Compliance with s. 10(a) is essential in order to facilitate the proper exercise of other rights, including the right to counsel enshrined in s. 10(b) and the right to silence in s. 7 of the Charter.

[47] Here, Mr. Carter was not told of the fact that he was under investigation in relation to a double homicide. Instead, he was presented with the innocuous statement that he was a suspect in a missing persons' investigation. This description did nothing to alert Mr. Carter to the fact that he was implicated in a very serious crime. It falsely sanitized the circumstances. It fell far short of the minimum standard of information required by the Charter.

[48] The breach of s. 10(a) is particularly serious if the police deliberately withheld the necessary information from Mr. Carter (see e.g. R. v. Borden). This would reflect a measure of bad faith that would strongly militate against admission of the evidence. I have refrained from making a definitive finding on that point and do not need to do so. Even if the interviewing officers did not deliberately misrepresent the status of the investigation, the resulting breach is still serious, reflecting a level of institutional negligence that cannot be condoned by the court. The need to advise a suspect of his or her jeopardy is fundamental. This applies to all manner of detentions, including investigative detentions based on reasonable suspicion (see R. v. Mann; R. v. Suberu). If the police did not know of their obligations in this regard, they clearly ought to have known.

[49] The first inquiry favours the exclusion of the evidence.

The Second Inquiry: Impact on the Charter-Protected Interests of the Accused

[50] The second inquiry “calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed” (Grant, para. 76). The court is to consider the interests protected and examine the degree to which the violation impacted on those interests. The more serious the impact, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.

[51] Where statements are concerned, s. 10(b) violations will usually result in a serious infringement of Charter protected interests, including the right to silence and the right against self-incrimination. As noted in para. 91 of Grant, “…as a matter of practice, courts have tended to exclude statements obtained in breach of the Charter, on the ground that admission on balance would bring the administration of justice into disrepute”.

[52] In this case, Mr. Carter had been advised of his right to counsel and had been given the opportunity to exercise that right, albeit in relation to other charges. He had the benefit of his lawyer’s advice that he had the right to remain silent and that he should exercise that right. However, that information must be understood in context. Mr. Carter had been arrested for relatively minor offences, and was told, beyond that, the police were investigating “missing persons”. He understood and exercised his right to silence against that backdrop. It is a very different matter for a person to learn that he is a suspect in connection with two murders. The court is not entitled to speculate on the legal advice that a suspect would have received absent a Charter breach (see e.g. R. v. Bartle, 1994 64 (SCC), [1994] S.C.J. No. 74). One can presume that Mr. Carter’s lawyer would have reiterated the importance of the right to silence, but we cannot know what else might have been said had the lawyer known that Mr. Carter was being questioned about homicides. We cannot know whether Mr. Carter would have waived his right to speak to his lawyer again at the beginning of the interview of July 7, 2008, had he known the type of questioning that was to follow. Nor can we know whether Mr. Carter might have exercised his right to silence in a different manner if he had been aware of his jeopardy.

[53] In short, this case raises all of the concerns that are traditionally associated with statements obtained following a Charter breach. The impact of the breach on Mr. Carter’s rights points to exclusion of the evidence.

The Third Inquiry: Society’s Interest in Adjudication on the Merits.

[54] At the third stage of inquiry, the question is whether “the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion” (see Grant at para. 79). The reliability of evidence is an important factor in this line of inquiry. As it was put in para. 81 of R. v. Grant:

...If a breach (such as one that effectively compels the suspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence. the admission of unreliable evidence serves neither the accused’s interests in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.

[55] In para. 84, the court stated the following about suspects’ statements:

…Just as involuntary confessions are suspect on grounds of reliability so may, on occasion, be statement taken in contravention of the Charter. Detained by the police and without a lawyer, a suspect may make statements that are based more on a misconceived idea of how to get out of his or her predicament than on the truth. This danger, where present, undercuts the argument that the illegally obtained statement is necessary for a trial on the merits.

[56] In most cases, a statement obtained following a Charter violation will be considered less than reliable. Unlike physical evidence, such as a weapon or drugs, or scientific evidence, such as DNA analysis, a statement does not possess any inherent reliability. A statement may be true or untrue. The risk of unreliability is increased when the statement is obtained following a Charter violation. That risk is present in this case.

[57] It is also relevant to consider that the statements of July 7 and 8, 2008 are not essential to the prosecution of this matter. This is not a case in which the exclusion of evidence will effectively “gut” the Crown’s case. Finally, I am mindful of the fact that I should not place disproportionate emphasis on the seriousness of the offence. In any event, in this case, the seriousness of the offences favours exclusion rather than admission. It is because of the seriousness of the offences under investigation that the breach of s. 10(a) is so very serious.

[58] The third inquiry favours exclusion.

THE BALANCING

[59] I have found that all three inquiries favour exclusion of the evidence. There is, therefore, no meaningful balancing to be carried out.

[60] I conclude that the admission of statements made by Mr. Carter to police officers on July 7 and 8, 2008 would bring the administration of justice into disrepute. That evidence is excluded under s. 24(2) of the Charter.

Original signed by “Justice Renee Pomerance”

Renee M. Pomerance
Justice

Released: January 6, 2012

COURT FILE NO.: CR-10-2017

DATE: 20120106

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – TIMOTHY CARTER and DONALD DODD Ruling on the admissibility of timothy carter’s statements Pomerance J.

Released: January 6, 2012

[^1]: The defence also argued that the voluntariness of the July 7 and 8 statements had not been proved. Because of my disposition of the Charter issue, I need not decide whether those statements were voluntary.