ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-40000008-0000

DATE: 20130304

BETWEEN:

HER MAJESTY THE QUEEN

Applicant/Respondent

– and –

LAVARE WILLIAMS

Respondent/Applicant

– and –

CHAEL MILLS

Respondent

Patrick Clement and Mary Misener, for the Crown

R. Roots Gadhia, for the Accused, Lavare Williams

Talman Rodocker, for the Accused, Chael Mills

HEARD: January 28 & 29, 2013

APPLICATION # 8

STATEMENT OF LAVARE WILLIAMS

CROWN APPLICATION TO PROVE STATEMENT VOLUNTARY

DEFENCE APPLICATION TO EXCLUDE

REASONS FOR DECISION

Clark J.:

INTRODUCTION

[1] The accused, Lavare Williams and Chael Mills, are charged with the May 3, 2010 murder of one Mitchell Celise.

[2] On January 28, 2013, the Crown sought to prove voluntary an utterance Williams allegedly made to a police officer on April 16, 2010. Williams resisted that attempt.

[3] At the same time, counsel for Williams brought an application pursuant to ss. 9 and 24(2) of the Charter to have the statement excluded by reason of being constitutionally infirm.

[4] Counsel for Mills took no position on either application.

[5] With the consent of the parties, I conducted what is generally referred to as a “blended” voir dire. I reserved until the following day.

[6] On January 29, in a brief oral pronouncement, I allowed the Crown’s application and dismissed the accused’s application. I indicated at that time that I would give reasons for those decisions as soon as time permitted; these are those reasons.

FACTS

[7] The court heard from a single witness for the Crown, Police Constable Shona Selby, who was a member of the Toronto Police Service’s TAVIS[^1] unit at the time the statement in issue was made.

[8] The defence elected to call no evidence.

[9] P.C. Selby testified that on April 16, 2010, her unit was on patrol in the area policed by 13 Division. As part of those duties, she and her partner entered an apartment building situate at 481 Vaughan Rd. She indicated that, at some earlier time, the superintendent of the building had asked TAVIS officers to look in on the building when they were in the area. According to what Selby understood, the superintendent was concerned that non-residents were frequenting the building and people were smoking crack in the stairwells. In addition, there had recently been a shooting at nearby Vaughan Road Collegiate.

[10] While on the sixth floor of the building, the officers encountered a young man walking towards them. Selby said she spoke to the man. Selby recorded a description of the man in her note book. That description fits the accused reasonably well. The description included mention of a tattoo on the man’s right arm that said “M.O.B. Klick”. The accused has such a tattoo on his right arm.

[11] Selby said the man identified himself verbally as Lavare Williams and said he lived in Apartment 604. The man professed to have no identification on his person. Taking his information at face value, the officers then used their hand held radio to do a computer check to see if a person by that name was wanted. When they discovered that he was not, the individual was allowed to proceed on his way. The encounter lasted approximately one minute.

[12] In cross-examination, Selby acknowledged that she did not advise the person that he was not obliged to answer her questions. She said that, had the young man decided to leave, she would probably have tried to persuade him to stay, but, had he insisted on leaving, “he could’ve gone.”

[13] Selby indicated that, when she got back to her station, she made some further computer checks on the man she had investigated and confirmed his identity to her satisfaction.

[14] Selby was not asked to identify the accused in court.

VOLUNTARINESS

[15] It was never suggested to P.C. Selby that either she or her partner ever threatened the person to whom they spoke, offered him any inducement to speak with them, tricked him in any way, or did anything to create an air of oppression that would have caused him to answer Selby’s questions. It was not suggested that the person lacked an operating mind. Nor was any of these issues raised by Ms. Gadhia in her argument. That said, I am satisfied beyond a reasonable doubt that the statement was in all senses voluntary.

[16] The only issue on the voluntariness aspect of the blended voir dire was whether the person to whom P.C. Selby spoke was in fact the accused. Before turning to that question, I wish to first note the somewhat unusual procedure followed in this voir dire. I do so in order to explain how, in addition to the evidence of Selby, I came to rely on evidence from other pre-trial applications in this trial in deciding this application.

[17] In the course of the Crown arguing the voluntariness issue, I raised with the Crown the question of whether the evidence was sufficient to establish that it was the accused to whom Selby spoke. In response, Crown counsel referred to various pieces of evidence from other pre-trial applications I had heard in the weeks leading up to January 28. When I indicated that I could not rely on other evidence because there had been no motion to have it apply on this application, Mr. Clement then asked to re-open the voir dire in order that, in turn, he might move to have the other evidence apply. Defence counsel opposed the Crown’s request. Based on the manner in which defence counsel had cross-examined the officer, that is to say, by avoiding any acknowledgment that it was in fact the accused Selby had been dealing with, I felt it would be unfair to permit the Crown to re-open at this point and refused leave.

[18] Defence counsel then argued that the Crown had failed to prove that the utterance had been made by her client.

[19] At the completion of the submissions, as indicated above, I then reserved my decision. The next morning, as I was about to give my ruling, Crown counsel asked if he might give me an authority on point that he had found the previous night. I indicated to the Crown that it was not necessary because the holding in the case he was offering was consistent with the decision I had reached, in any event.

[20] At that point, defence counsel sought to re-open the voir dire in order to move that the evidence from the other applications apply to this voir dire. Ms. Gadhia noted that the Crown had relied heavily in its argument that identity had been established, in part at least, by Selby’s evidence concerning the M.O.B. Klick tattoo. As a result of the Crown making those submissions, she indicated that she wished to be able to refer the court to other evidence showing that the tattoo was in fact ubiquitous, such that the court should not rely on it to any degree as proof that the man who bore that tattoo was the accused. The Crown being content to permit the other evidence to apply, I agreed to consider the evidence heard on the other applications on this voir dire. I then heard further argument on the question of whether there was sufficient proof for the court to conclude that it was the accused who made the statement. It is to that discussion that I now turn.

[21] To begin, because it is hearsay, I disabuse myself of Selby’s evidence concerning information she learned from checking police computers, both while on scene at 481 Vaughan Rd. and later at the police station.

[22] The principal issue before me is what evidentiary significance, if any, the man’s self-identification can have.

[23] In R. v. Brown, 2003 27393 (ON SC), [2003] O.J. No. 2152 (S.C.J.), relying on R. v. Evans, 1993 86 (SCC), [1993] 3 S.C.R. 653, Campbell J. held that the self-identification of a person over the telephone was not hearsay, but, rather, original evidence. At paragraph 23, Campbell J. stated, “On that non-hearsay basis the evidence is admissible as a piece of circumstantial evidence, whatever may be its weight, to add to other pieces of circumstantial evidence about the identity of the person who made the phone call.”

[24] In R. v. Henry, [2006] O.J. No. 4167 (S.C.J.), Durno J., sitting as a summary conviction appeal court, upheld the trial judge’s reliance in an assault case on the self-identification of a complainant who, while once cooperative with the police, was no longer willing to come to court. At paragraph 37, Durno J. found that “the giving of the name was admissible having some probative value on the issue of identity” (emphasis in original). He stated, “While all of the cases cited in support of the admissibility of the ‘complainant’s’ name were cases where it was the accused’s name that was in issue, I am not persuaded that different considerations apply.”

[25] In R. v. Chandra (1975), 1975 1294 (BC CA), 29 C.C.C. (2d) 570 (B.C.C.A.), a person identified himself to a police officer at the scene of a motor vehicle accident, both orally and with a driver’s licence. The trial judge ruled this evidence inadmissible. When the officer could not identify the person in court, the judge directed the jury to acquit the accused. Allowing the Crown’s appeal, McIntyre J.A., as he then was, stated, at p. 573:

In my opinion, mere identity of name affords some evidence of identity of a person. When accompanied by other factors such as the relative distinctiveness of the name, or the fact that it is coupled with an address, or appears upon a licence or other document of significance, its weight is strengthened.

[26] The foregoing passage from Chandra was expressly adopted in R. v. Nicholson (1984), 1984 ABCA 88, 12 C.C.C. (3d) 228 (Alta. C.A.), where one of the issues at trial was the identity of a person charged with “over 80”. As in Chandra, the person had identified himself both orally and by producing a driver’s licence. At p. 236, Kerans J.A., speaking for the majority, stated, “[T]here are authorities to the effect that an inference could be drawn from the mere similarity of nomenclature that the person who answers the summons is the accused. At the very least, similarity of names is a matter to be weighed”. Kerans J.A. went on to say that, while it was possible that the person had misidentified himself, in the absence of any evidence to support such a hypothesis, it was “utter speculation” (at p. 237).

[27] More recently, Chandra was cited with approval by the Ontario Court of Appeal in R. v. D.B., 2007 ONCA 368, [2007] O.J. No. 1893, where, at paragraph 1, the court held:

Based on the authority of R. v. Chandra (1975), 1975 1294 (BC CA), 29 C.C.C. (2d) 570 (B.C.C.A.), R. v. Longmuir, [1982] O.J. No. 119 (C.A.) and R. v. Vasquez-Rivera, [1999] O.J. No. 1955, the identity of names of the person the complainant identified as her assailant and the appellant constituted some evidence on the issue of identity. The trial judge therefore erred in granting the appellant's motion for a directed verdict.

[28] In R. v. McFarlane (2007), Newmarket 03/05979 (Ont. S.C.J.), aff’d, 2012 ONCA 355, [2012] O.J. No. 2374,[^2] the court admitted the evidence of a police officer concerning an oral self-identification by a third party as some evidence of the identity of that third party. In that case, as here, the third party produced no identity document in support of his oral identification. See also Rex v. Blackburn (1919), 1919 600 (NS SC), 32 C.C.C. 119 (N.S.S.C.); The King v. Leach et al. (1908), 1908 218 (ON SC), 14 C.C.C. 375 (Ont. H.C.J.), at p. 396.

[29] In this case, the accused and the person to whom the police spoke on April 16, 2010, share the same:

(i) name (although the accused’s last name is common, his first name is quite unusual);

(ii) general physical description; and

(iii) M.O.B. Klick tattoo on the right arm.

[30] There is also circumstantial evidence from which the jury could decide that the accused resided, at least part of the time, at the same apartment mentioned by the person to whom the officers spoke.

[31] Official documents, including court documents, found in the apartment bear the name Chael Mills. Taken together with evidence that Mills and Williams are associates, that is a further piece of circumstantial evidence linking Williams to that address.

[32] It must also be remembered that it is the voluntariness of the statement that the Crown must prove beyond a reasonable doubt. The Crown need not, however, prove beyond a reasonable doubt that the speaker was the accused; rather, it is sufficient if the evidence is capable of showing that on a balance of probabilities: Evans, at pp. 667-69.

[33] In the absence of any evidence to the contrary, the aforementioned evidence is more than sufficient to establish on a balance of probabilities that the person to whom Selby spoke was the accused, Lavare Williams.

SECTION 9

[34] Turning to the alleged breach of s. 9 of the Charter, assuming that it was the accused to whom Selby spoke, counsel alleges the accused was arbitrarily detained.

[35] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paragraph 44, the Supreme Court defined “detention” as follows:

Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

[36] In R. v. Dhillon, 2012 BCCA 254, [2012] B.C.J. No. 1188, at paragraph 30, speaking for the court, Smith J.A. held:

Detention for Charter purposes exists where there is "a suspension of the individual's liberty interest by a significant physical or psychological restraint": R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 44. Psychological detention occurs where an individual "submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist": R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613 at 644, cited in Grant at para. 28. The determination of whether there has been detention is an objective test: Grant at para. 31. Where there has been no physical restraint and no legal obligation to comply with a demand by a police officer, the question is whether "a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply". The relevant considerations in those circumstances include (at para. 44):

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquires regarding a particular occurrence; or, singling out the individual for focussed investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[37] I find that the officers were “maintaining general order” and a person in the accused’s position would have perceived them to be doing that and no more.

[38] I find that the officers’ conduct was polite, professional and in no way intimidating. The duration of the encounter was extremely brief, approximately one minute. Neither officer gave the accused any sort of command that required the accused to remain or to engage in the conversation. Neither officer ever had any physical contact with the accused, much less any physical control over him.

[39] As for the characteristics of the accused, he is a member of a minority, but I find this had no bearing on the officers’ decision to speak to him. Rather, as noted above, the officers were generally patrolling the building because the superintendent had asked them to do so.

[40] The accused was 18 years of age at the time. He is a man of average height and weight. Counsel for the accused argued on a different voir dire that the accused is particularly unsophisticated, but having heard him speak in the course of two lengthy interviews that were the subject of that earlier voir dire, I disagree. Accordingly, I find that there was nothing about the accused that made him particularly vulnerable or more apt than anyone else to feel he “had no choice but to comply” with the officers’ wish to question him.

[41] The court not having heard from the accused, there is no direct evidence as to his state of mind. As for circumstantial evidence, there is nothing about this encounter that, to my mind, would suggest that the accused would have felt that he was not free to leave.

[42] I am not satisfied the accused was detained; indeed, I am satisfied on a balance of probabilities of the contrary. There having been no detention, there was no breach of s. 9 of the Charter.

RESULT

[43] In the result, being satisfied beyond a reasonable doubt that the statement was voluntary and satisfied on a balance of probabilities that the accused was not detained, the statement is admissible.

Clark J.

Released: March 4, 2013

[^1]: Toronto Anti-Violence Intervention Strategy.
[^2]: The admissibility of the man’s utterance was not raised on appeal.