COURT FILE NO.: 12-40000008-0000

DATE: 20130307

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant/Respondent

– and –

LAVARE WILLIAMS Respondent/Applicant

– and –

CHAEL MILLS Respondent

COUNSEL: 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 7, 8, 10 & 14, 2013

PRE-TRIAL APPLICATIONS # 1, 2 & 6 CROWN APPLICATION TO PROVE STATEMENTS VOLUNTARY DEFENCE APPLICATIONS TO EXCLUDE STATEMENTS AND DERIVATIVE EVIDENCE FOR CHARTER INFRINGEMENTS

REASONS FOR DECISION

Clark J.:

INTRODUCTION

[1] The accused, Lavare Williams, stands charged that, on or about May 3, 2010, he killed one Mitchell Celise and did thereby commit second degree murder.[^1]

[2] The Crown sought to prove voluntary two statements Mr. Williams made to the police on May 4 and 19, 2010, respectively. The accused challenged the voluntariness of the statements attributed to him. In addition, he alleged breaches of his rights under ss. 7, 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms (“the Charter”). At the request of the parties, I conducted what is usually referred to as a “blended voir dire” into both the common law and constitutional issues.

[3] On January 10, 2013, in a brief oral pronouncement, I ruled that the May 4, 2010, statement was involuntary, but held that a limited portion of the accused’s May 19, 2010, statement (which was all the Crown asked me to rule upon) was voluntary. Further, I indicated that I had found breaches on May 4 of the accused’s rights under ss. 8 and 10(b) of the Charter. Notwithstanding those breaches, however, I held that the May 19 statement was constitutionally sound and, hence, admissible. I indicated at that time that I would give reasons for those decisions as soon as time permitted; those reasons follow.

[4] When I announced the aforementioned decisions on January 10, 2013, counsel for Mr. Williams then advised that she wished to bring a further application to have certain evidence said to be derived from the inadmissible May 4 statement declared inadmissible, to wit:

(i) certain telephone records upon which the Crown seeks to rely; and

(ii) the viva voce evidence of a witness of whose existence, so the defence contends, the police would have been unaware but for their having accessed the telephone records.

[5] On January 14, 2013, I heard evidence and argument concerning whether the derivative evidence should be excluded, following which I reserved judgment. On January 22, 2013, I announced orally that the impugned evidence was admissible.

[6] The Charter issues respecting the May 4 statement and the seizure of the accused’s cellular telephone on that day are essentially co-extensive. For that reason, in the interests of both clarity and brevity, I have combined my reasons for decision on Applications #2 and #6; these reasons also follow.

FACTS

[7] The following recitation of facts will suffice for all three applications.[^2]

[8] On May 3, 2010, shortly after 3:30 p.m., near the intersection of Winona Dr. and Hursting Ave., in the City of Toronto, someone shot Mitchell Celise in the back. The Toronto Police Service (“TPS”) responded. The first officer to arrive found Celise lying on the sidewalk; he was rushed to hospital, but died a short time later.

[9] At 6:15 p.m. that day, a resident of the area, Ms. Patsy Warren, attended the TPS 13 Division station and provided a video recorded statement to a Detective Gilfoy. Ms. Warren told the police that, while outside her home on Earlsdale Ave.[^3] that afternoon, she heard what she thought were gunshots and saw three young men running from the direction of the shots. One ran northbound on Winona Dr. The other two turned onto Earlsdale Ave., running westbound toward her. One of the two ran up onto her porch. She gave the following description of that male:

• male, black

• dark complexion

• protruding bottom lip

• white spots on the edges of his teeth

• dark brown eyes

• approximately 5’9” in height

• slim build

• approximately 13 or 14 years old, but possibly as old as 16

• Canadian accent

• white long-sleeved shirt

• long light-blue jeans, with white design on the back pockets

• black and white bandana tied in the back of jeans, partly inserted in right back pocket.

[10] Ms. Warren told the police that the man on her porch was out of breath. She attributed to him words to the following effect: “Oh my God, oh my God, oh my God, he shot.” She then described how, when the young man left her porch, he went west on Earlsdale. She then lost sight of him. When she next saw him, a few minutes later, he was no longer wearing the long-sleeved shirt, but, rather, a vest. Ms. Warren said that as the man was walking westbound on Earlsdale Ave., she saw that he had his hand to his ear, as though he was talking on a cell phone.

[11] The police searched behind the houses on Earlsdale Ave. that same day. With the assistance of his police dog, Sonik, TPS Dog Services handler Sgt. James Adamson found a long-sleeved white shirt and a baseball hat in the backyard of 93 Earlsdale Ave.

[12] On May 4, 2010, Detective Ogg of the TPS Homicide Squad, the lead investigator in this case, was parked in an unmarked police car across the street from 93 Earlsdale. By that time, Ogg was aware of the description Ms. Warren had given of the man on her porch. At approximately 11:30 a.m., Ogg noticed a young male coming toward her on a bicycle. He fit Warren’s description, including the protruding bottom lip. That male was the accused.

[13] The accused came to a stop near Ogg’s vehicle and appeared to Ogg to be looking down the driveway of 93 Earlsdale, where several uniformed police officers were present. She said the accused seemed to be trying to conceal himself from the officers by hiding behind her vehicle. When one of the officers appeared to notice the accused, and started to come toward him, the accused immediately cycled away.

[14] Because the accused fit Warren’s description and because she felt he was behaving suspiciously, Ogg decided to investigate him. To that end, she went to locate Sgt. Adamson and Sgt. Morris of 13 Division, each of whom had a vehicle, in order to enlist their assistance. Upon finding the officers, she gave them a description of the accused and instructed them to locate and detain him for investigation.

[15] Following Ogg’s instructions, Adamson drove west on Earlsdale until he encountered the accused near the corner of Earlsdale and Oakwood Avenues, coming eastbound on the sidewalk on his bicycle. At 11:25 a.m., according to his notes, Adamson drove up onto the sidewalk, stopped and got out of his vehicle. As the accused came within reach, Adamson grabbed the accused’s left arm and told him to let his bicycle drop. Adamson warned the accused not to run and said, if he were to do so, he would release his police dog. The accused was co-operative and the dog remained caged in the rear area of Adamson’s vehicle.

[16] Det. Ogg and Sgt. Morris, who had been following Adamson in their respective vehicles, joined him just as he was taking control of the accused.

[17] Ogg told the accused that he was being detained for investigation because he matched the description of a suspect in a recent homicide. The accused indicated that he was aware of the shooting. Ogg testified that she also advised the accused at this time that he could consult a lawyer if he wished to do so.

[18] At the same time as he took physical control of the accused and guided him to the side of his police vehicle,[^4] Adamson ordered the accused to place his hands on the side of the vehicle so that he could pat him down for weapons as a safety precaution. Adamson indicated that the accused expressed no opposition to being frisked. Ogg also advised the accused that he was being searched for everyone’s safety.

[19] At this time, Ogg noticed that the accused’s blue jeans had white swirl patterns on the rear pockets that she believed matched Warren’s description of the jeans worn by the man on her porch. Ogg also noted a black and white “doo rag” tied on the right side of the accused’s pants, tucked partly in his waistband, that she also believed accorded with Warren’s description. Concerned that the accused might be utilizing the doo rag as a lanyard of sorts, from which to suspend a weapon, she told Adamson to check it.

[20] Adamson acknowledged that, as he frisked the accused, he put his hand into the accused’s right front pants pocket where he found a cellular telephone and a business card. He gave those items to Sgt. Morris, who put them on the trunk of her car.

[21] As Adamson was frisking the accused, the accused’s jeans, which were very loose fitting, began to slide down his legs. Beneath his jeans, the accused was wearing a pair of basketball shorts and, under them, a pair of boxer shorts. Both Adamson and Ogg testified that, as the accused’s pants were sliding down, the accused removed his right arm from the car several times in an effort to pull them back up. Finally, Adamson told the accused to just let the jeans fall, which he did. Adamson then told the accused to step out of his jeans and shoes, which he also did, whereupon Adamson kicked the jeans in Morris’ direction.

[22] In speaking with the accused at this point, Ogg noticed he had white spots on his teeth, which fit Warren’s description. She also noted that he had the letters “M.O.B.” tattooed on his right forearm.

[23] The accused identified himself verbally as Lavare Williams. At 11:27 a.m., because the accused had no documents to verify his identity, Ogg decided to further detain him to ascertain with certainty his identity. To that end, she instructed Adamson to handcuff the accused and place him in the rear of Sgt. Morris’ vehicle. Morris activated the onboard closed-circuit television camera and trained it on the accused in the backseat. Because it was a very warm day, Morris turned on the air conditioning to ensure that the accused would be comfortable.

[24] The accused remained in the back seat of Morris’ car while Morris and Ogg conducted background checks. Ogg spoke by telephone with her partner, Det. Mary Vruna, to have Vruna check certain police databases in order to confirm the verbal identification the accused had given and to confer with her as to whether there were grounds to arrest the accused.

[25] At one point, Adamson asked the accused to get out of Morris’ vehicle in order to examine a pattern on the accused’s shirt that Morris had noticed, and which she thought might be blood staining. Adamson assisted the accused to step out of the car. He then lifted up the accused’s shirts and white vest, or tank top, he was wearing without removing those garments.

[26] At 11:50 a.m., based on her knowledge of the investigation to that point, including the fact that the accused fit Warren’s description and what she considered to be his suspicious behaviour, Ogg decided she had sufficient grounds to arrest the accused for the murder of Celise.

[27] On Ogg’s instructions, Adamson arrested the accused for first degree murder, cautioned him and advised him of his right to counsel.[^5] The accused indicated that he understood. He said he did not wish to speak to counsel, but did want to speak to his grandfather. Ogg informed the accused that he would have reasonable access to a telephone at the station. Ogg then asked the accused if he had a lawyer, to which he replied that he did not. On the strength of that response, Ogg informed the accused that, since it was such a serious matter, she would put him in contact with Duty Counsel.

[28] At 12:02 p.m., with the accused in her vehicle, and followed by Adamson and Ogg in their respective vehicles, Morris set out for 13 Division, arriving at 12:07 p.m.

[29] At 12:14 p.m., Adamson paraded the accused before the officer in charge of the station, Sgt. Jostiak.[^6] After the booking was complete, Adamson placed the accused in Interview Room A of the Criminal Investigations Bureau (“CIB”). On instructions from Ogg, Adamson left the handcuffs on, ostensibly to limit the accused’s ability to rid himself of any gunshot residue (“GSR”) that might be on his hands.[^7] Adamson said that, when he lodged the accused in Room A, the accused indicated that he wished to use the washroom. Adamson did not take the accused to the washroom, but told the accused he would see that someone took him.

[30] At 1:20 p.m., Ogg attended Room A and confirmed the accused’s name and date of birth and got contact information for his grandfather. Ogg advised the accused that she was going to arrange for him to speak to Duty Counsel.

[31] At 1:37 p.m., D/C Bartlett called Duty Counsel and left a message.

[32] At 1:50 p.m., Duty Counsel, Peter Gakiri, returned the call and spoke to the accused in private.

[33] At 1:59 p.m., D/C Bartlett contacted the accused’s grandfather and the accused spoke to him.

[34] At 2:17 p.m., the accused’s counsel, Ms. Gadhia, called 13 Division and spoke to Det. Ogg. Ms. Gadhia then spoke to the accused in private from 2:22 p.m. until 2:51 p.m.

[35] At 4:20 p.m., D/C Handy of TPS Forensic Identification Services (“FIS”) and D/C Ruhl of the Homicide Squad attended Room A. After explaining the procedure to the accused, Handy tested the accused’s hands for GSR. Handy also photographed the accused and seized all of his clothing, other than his boxer shorts.[^8] He was given a jumpsuit to wear.

[36] At 4:40 p.m., the accused asked D/C Handy to contact his lawyer to obtain contact information for his mother, to whom he wished to speak.

[37] At 5:00 p.m., having been informed of the accused’s request, Ogg contacted Ms. Gadhia to arrange for the accused to speak to his mother.

[38] At 5:36 p.m., the accused’s mother contacted 13 Division and spoke to the accused.

[39] From 7:13 p.m. until 9:05 p.m., Ogg and Vruna conducted an interview[^9] of the accused, during the course of which the accused provided a partial alibi to the police.

[40] At 9:21 p.m., the accused was released unconditionally.

[41] On May 14, 2010, as a result of further investigation, which included checking the partial alibi the accused provided on May 4, Det. Vruna determined that she had grounds to arrest the accused for first degree murder. Vruna contacted the accused’s mother and asked her to tell her son to turn himself in at 13 Division. Ms. Gadhia arranged for the accused to surrender.

[42] On May 19, 2010, the accused attended 13 Division with his counsel, Ms. Gadhia, and various members of his family. He was arrested by Det. Vruna and booked into the station at 7:56 p.m.[^10]

[43] Once the booking was complete, the accused was taken to an interview room by Det. Vruna, who left the door open until uniformed officers arrived to search him. At 8:02 p.m., he was searched by P/C Dominelli and P/C Bertucci.

[44] Commencing at 9:40 p.m., the accused was interviewed by Vruna and Ogg. As part of that process, the accused was read both a primary and secondary caution; he indicated that he understood those cautions.

APPLICATION #1: VOLUNTARINESS OF STATEMENTS OF LAVARE WILLIAMS

ISSUES

[45] In terms of the voluntariness of the May 4, 2010, statement, I am obliged to consider:

(i) whether anything the police did in their dealings with the accused on that day:

(a) amounted to a threat;

(b) amounted to an inducement;

(c) created, either by itself or in conjunction with one or more other things the police did, an air of oppression; or

(d) amounted to trickery;

(ii) whether the accused had an operating mind; and

(iii) whether the Crown had put before the court a sufficient evidentiary foundation to satisfy its onus of proof on such an application.

[46] In terms of the voluntariness of that small portion of the May 19 statement that the Crown seeks to adduce, in addition to considering the same issues as I have identified in relation to the May 4, 2010, statement, I must also consider whether anything that took place on May 4 had the effect of compromising the voluntariness of the May 19 statement.

POSITION OF THE CROWN

[47] It is the position of the Crown that both statements were voluntary.

POSITION OF THE ACCUSED

[48] It is the position of the accused that the May 4, 2010, statement was involuntary because it resulted from a combination of threats, inducements, trickery, and oppression. Counsel further contends that the will of the accused was overborne by the actions of the officers, such that there is a reasonable doubt whether he had an operating mind.

[49] As for the May 19, 2010, statement, counsel for the accused contends that the statement is tainted and, thus, inadmissible, by virtue of the actions of the police on May 4, 2010, and, further, that it is inadmissible in its own right by virtue of the aggressive attitude displayed by the investigators in the course of that interview.

DISCUSSION

Voluntariness of the May 4, 2010 Statement

(i) Did the action(s) of the police on May 4, 2010, amount to a threat?

[50] The only threat alleged by the accused is Adamson’s warning that, if the accused were to attempt to flee, he would release his dog. Although that was all Adamson said, the potential for unpleasant consequences if Adamson were to release the dog in that situation is obvious. Thus, according to counsel, this remark constituted a threat that should, in its own right, render the accused’s subsequent statement involuntary.

[51] Speaking generally, for a threat to vitiate the voluntariness of a statement, it must be such that it could meaningfully be said that it might have influenced the accused to make the impugned statement: R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 15. As Watt J., as he then was, stated in R. v. Roy, [2002] O.J. No. 5541 (S.C.J.), at para. 240, aff’d, (2003), 180 C.C.C. (3d) 298 (Ont. C.A.), “There must be some link, nexus, or connection between the police conduct and the decision to speak. Context is critical.”

[52] As for threats involving dogs, I could find only two cases respecting the admissibility of a statement where a police dog had been used to apprehend the accused.

[53] In R. v. Hart (1989), 1989 ABCA 93, 48 C.C.C. (3d) 516 (Alta. C.A.), while being apprehended for breaking and entering, the appellant was bitten in the neck, legs and arms by a police dog. McClung J.A., speaking for the court, held that the trial judge erred in finding that the statement, which the appellant blurted out as he was being apprehended, was “‘. . . spontaneous and very voluntary’, and not the product of duress or threats.”

[54] In R. v. Elliott, 2010 BCSC 863, [2010] B.C.J. No. 1174, on the other hand, the court found the accused’s statement to be voluntary, notwithstanding it was made after a police dog bit the accused twice in the course of apprehending him. Unlike the impugned statement in Hart, Elliott did not make his statement until he was in the police station, long after his encounter with the dog. Moreover, as I read Elliott, the fact that the dog bit the accused was not even raised as part of the voluntariness argument.

[55] This case is a far cry from either Hart or Elliott. Here, the dog was at all times in Adamson’s vehicle. Moreover, even though the accused was told to face Adamson’s Chevrolet Suburban and put his hands on it, the dog would not have been clearly visible from the accused’s position because the vehicle had tinted rear windows and the dog was in a metal cage inside. There is no evidence that Adamson’s dog either growled or barked. While obviously not dispositive, it was Adamson’s evidence that he did not consider his advisory to be a threat. There is, of course, no evidence from the accused as to how he perceived what Adamson said.

[56] In my view, the warning was not unreasonable in the circumstances. That said, I do not consider Adamson’s advisory to be a threat. On the contrary, all Adamson did was give the accused what I consider to be fair warning that, were he to attempt flight, Adamson would employ the dog to apprehend him.[^11]

[57] The statement did not commence until 7:13 p.m., almost eight hours after this alleged threat and approximately seven hours after the accused had last had any interaction with Adamson. Moreover, it is apparent from both the video from the police car and the booking procedure that all subsequent dealings between Adamson and the accused were as friendly and polite as the circumstances permitted. Given the time that had passed since Adamson last dealt with the accused and the fact that he was a Dog Services officer, it must have been obvious to the accused that, as of the time the interview commenced, Adamson had long since left 13 Division. Thus, even if the accused had felt some degree of intimidation in relation to the dog at the time he was first stopped, any such feeling would have long since evaporated.

[58] Even if Adamson’s advisory could be construed as a threat, a proposition with which I disagree, it was so remote in time and so unrelated notionally to the subsequent giving of the statement that it is idle to suggest that it could have influenced the accused to give a statement when he was not otherwise inclined to do so, or could even have contributed to his decision in that regard.

(ii) Did the action(s) of the police on May 4, 2010, amount to an inducement?

[59] To warrant exclusion of a statement, it is not enough to show that an inducement was held out; rather, it is necessary to examine inducements contextually, having regard to the particular individual and his circumstances, in order to determine whether “standing alone or in combination with other factors, [they] are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne”: Spencer, at para. 13, citing R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 57.

[60] The accused contends that the homicide officers induced him to make the May 4 statement when on separate occasions both Ogg and Vruna indicated that, while he was under investigation for murder, he might or might not be released at the end of their investigation that day. There is no evidence to suggest that anything more direct was ever said to connect the making of a statement to the possibility of release.

[61] On the one hand, in several of her arguments, defence counsel was at pains to convince the court that her client is an unsophisticated individual who would not have understood much of what was going on that day. On the other hand, Ms. Gadhia suggests that this same, unsophisticated young man would have understood the subtle nuance that she suggests was implicit in the officers’ advice vis-à-vis release. In the absence of any direct evidence on the point, the notion that the accused understood the officers’ remarks in this way is so remote as not to raise a reasonable doubt in my mind. Accordingly, I reject the proposition that anything said by the officers respecting release amounted to an inducement, much less an operative one.

(iii) Did the accused have an operating mind?

[62] Counsel for the accused contends that the actions of the police were such as to overbear the accused’s will to resist their questioning. I disagree. It is apparent from the video of the May 4 interview that the accused had the presence of mind to interrupt the officers frequently when they were speaking, to disagree with them when he felt so inclined, and, most importantly, perhaps, to refuse to provide a DNA sample when they requested it.[^12] These are not the actions of someone whose free will has been overborne. It is clear to me beyond any reasonable doubt that the accused was at all times on May 4 in full possession of his faculties, knew that he was speaking to police officers, and knew full well that any statement he might make could be used to his detriment: Oickle, at para. 63.

(iv) Did the action(s) of the police create an air of oppression?

[63] A statement will be involuntary where it results from oppression, but, for a statement to be involuntary on this ground, “the conduct of authorities [must be] so oppressive that the accused’s free will is effectively overborne, thereby sapping the will and strength of the interviewee to make an independent choice to speak or remain silent”: A.W. Bryant, S.N. Lederman & M.K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3rd ed. (Markham: LexisNexis Canada, 2009), at p. 448.

[64] An air of oppression can arise from inhumane conditions, which include: “depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time”: Oickle, at para. 60.

[65] The accused contends that the manner in which he was accosted by Adamson on May 4, 2010, when taken together with other actions, calls into question the voluntariness of his statement. I disagree.

[66] On the one hand, with the benefit of hindsight, Adamson’s method of detaining the accused might seem overly aggressive and unnecessary. On the other hand, it must be remembered that Adamson was obliged to make a decision on the sudden and, in light of the fact that the accused was riding a bicycle, had he decided to flee, Adamson might have been hard pressed to apprehend him. In my view, it was not unreasonable for Adamson to physically take hold of the accused at the outset of their encounter.

[67] Ms. Gadhia says that it is apparent from the police cruiser video that the accused was frightened. I disagree. While it is true that the accused looks somewhat downcast and consternated while seated in the back of the police car, I would expect that anyone would experience a certain depression upon being told that he was being investigated in relation to a possible charge of murder. In my opinion, bearing in mind all the circumstances, the accused appears on the car video, only minutes after Adamson grabbed him, to have been relatively calm and unperturbed.

[68] Apart, then, from that initial physical interaction between the accused and Adamson, the remainder of the accused’s dealings with the police were as cordial and polite, going both ways, as one could reasonably expect in such circumstances. The car video captures the voices of the officers speaking at various points to the accused. I find as a fact that they were polite and pleasant throughout.

[69] Ms. Gadhia also made much of the accused’s demeanour on the booking video. It is apparent, she contends, that the accused was scared. Again, I disagree. To my observation, the videos of the booking procedure and the interview both show that the accused was treated in a polite, respectful manner and seemed to be taking the process in stride.

[70] Even if I were to agree with Ms. Gadhia’s assertion that the accused looks scared, which I do not, timidity or fear of the police on the part of an individual will not vitiate voluntariness (R. v. Whynott (1975), 27 C.C.C. (2d) 321 (N.S.C.A.)) unless the accused’s fear resulted from some untoward conduct on the part of the police officers: R. v. Hobbins, [1982] 1 S.C.R. 553, at p. 557.

[71] Ms. Gadhia adverted to the fact that Det. Vruna made no effort to address the accused’s complaint at the outset of the interview that he was cold. While the accused did mention to the officer that he was “just a little cold”, when one watches the video everyone appears to be reasonably comfortable; in particular, the accused does not appear to do any of the things that usually indicate that a person is cold.[^13] The accused never mentioned being cold again. To my mind, even assuming he was somewhat colder than he might have liked, this is not the sort of discomfort that would establish or, for that matter, even contribute to an air of oppression.

[72] As for the interview itself, counsel argues that it is apparent, when one watches the video, that the accused is frightened. To my observation, given the nature of circumstances, the Homicide Squad officers conducted themselves in a pleasant and professional manner and, for his part, the accused seems to have been quite calm and self-assured.

[73] “Oppression and oppressive circumstances arise from conditions created by police conduct. They are not self-generated and are the antithesis of a reasoned choice by an interviewee to speak out of self-interest”: Roy, at para. 253. In this case, I find as a fact that the accused chose to answer the questions he did because he felt it was in his best interests to provide the account of his whereabouts at the material time so as to direct the police away from considering him as a suspect in the shooting of Mr. Celise.

[74] In summary, on the evidence that was put before the court, I am satisfied beyond a reasonable doubt that there was nothing about the manner in which the accused was treated on May 4, 2010, so far as I am aware of it, that, either on its own or taken together with any other treatment, could sensibly be said to constitute an air of oppression.

(v) Police trickery

[75] Ms. Gadhia argues that Det. Vruna tried on more than one occasion on May 4, 2010, to trap the accused by asking him questions designed to confuse him. I do not agree. While admittedly there was some confusion at one point[^14] concerning the dates the accused was referring to when describing his movements in the days leading up to the homicide, a fair reading of this passage reveals that there was genuine miscommunication between the parties as to what day the accused was then speaking about. I see nothing in the May 4 statement that appears to be designed to trick or confound the accused. Moreover, a trick will not render a statement involuntary unless (i) it involves a threat or an inducement (R. v. Robertson (1975), 21 C.C.C. (2d) 385 (Ont. C.A.), at p. 417, leave to appeal ref’d, 21 C.C.C. (2d) 385n) or (ii) it is of such a nature as to shock the community: Oickle, at para. 67. Even if I were to agree that the officer attempted to trick the accused in the way counsel suggests, it would not satisfy that test.

(vi) Sufficiency of proof: failure to call witnesses

[76] Speaking generally, in seeking to prove a confession voluntary, it is not necessary for the prosecutor to call all persons in authority who had any contact with the accused; rather, the Crown need only call a witness who had contact with the accused where the witness would have been in a position to affect whether the accused gave a statement.

[77] In R. v. Socobasin (1996), 1996 NSCA 201, 110 C.C.C. (3d) 535 (N.S.C.A.), at p. 554, leave to appeal ref’d, [1996] S.C.C.A. No. 628, the court stated:

The trial judge must look at the circumstances and determine whether the Crown called as a witness on the voir dire every person in authority likely to have been in a position to influence the giving of the statement by the accused and, if not, was that person’s absence from testifying explained satisfactorily.

See also R. v. Dinardo (1981), 61 C.C.C. (2d) 52 (Ont. Co. Ct.), at p. 58, leave to appeal ref’d, 39 N.R. 448n, where Borins Co. Ct. J. (as he then was) held that a person need not be called to establish voluntariness if, “even assuming that she represented a person in authority, ... she was sufficiently remote from the taking of the statement...”.

[78] Against that backdrop, the problem for the Crown on this application is that, apart from the officers from whom I heard, I simply do not know how many other officers had contact with the accused on May 4, 2010, or what the nature of that contact was. It is obvious, however, that he had some contact with at least one officer, and possibly more, from whom I did not hear.

[79] For example, as noted above, Adamson said he left the handcuffs on the accused when he lodged him in Room A, but, of the numerous officers who testified on these applications, no one acknowledged having removed the handcuffs. Yet, someone must have taken them off before 1:37 p.m., because at that time the accused spoke by telephone to Duty Counsel, in private. At the risk of stating the obvious, he could not have done so had his hands still been cuffed behind his back. Therefore, accepting the evidence of the officers at face value, it follows necessarily that someone from whom I did not hear must have entered Room A and removed the handcuffs.

[80] In addition to that contact, although no evidence was ever adduced that anyone took the accused to the washroom, I infer that someone must have. I say that based on two facts: (i) as earlier noted, Adamson testified that when he put the accused into Room A the accused asked to go to the washroom, and (ii) on camera, approximately seven hours later, the accused does not ask to use the washroom and does not appear to be in the sort of discomfort one would expect to see if a person had needed to relieve himself for many hours. On the contrary, the accused appears to be perfectly comfortable and at ease. Whether the person who took him to the washroom was the same person who took the handcuffs off or someone else is, based on the lack of evidence, impossible to say.

[81] Further, inasmuch as Room A is in the CIB area of 13 Division, it is only reasonable to assume that, as well as the officers involved in this case, there were other officers in that area. There is, however, no evidence before me as to how many officers were in the general area over the many hours left unaccounted for on the evidence. Further, there is no circumstantial evidence from which I could reasonably draw the inference that no officer from whom I did not hear had any meaningful contact with the accused. For example, there is no evidence as to whether the door to Room A was locked from the outside or, if not, whether there was a sign on the door indicating that it was occupied, such that persons not connected to the case should keep out.

[82] It is one thing to make the court aware of officers who were present, but satisfy the court that the officers need not be called as witnesses, either because they had no contact with an accused or, in the event that an officer did have contact with an accused, because their interaction was of such a nature that it could not have affected the accused’s decision to make a statement. Those, obviously, are the situations contemplated by Socobasin and Dinardo. It is quite another thing, however, to leave the court in the dark, as it were, as to which officers had contact with an accused and the nature of any such interaction. That is particularly so where, as here, it is clear that one or more officers from whom the court did not hear had some sort of contact with the accused.

[83] When I raised this concern with Crown counsel in the course of oral argument, the Crown’s only answer was to suggest that it was open to the court to infer that nothing untoward occurred during the more than six hours unaccounted for because, when he was finally interviewed, commencing at 7:13 p.m., the accused made no complaint to the Homicide Squad officers. Indeed, Mr. Clement went so far as to suggest that it would be speculative for the court to assume that something untoward occurred. With respect, this submission misapprehends the Crown’s onus on such an application. At the risk of stating the obvious, it is not for the accused to prove that something untoward took place; rather, it is for the Crown to prove it did not.

[84] This situation arose in R. v. Holmes (2002), 62 O.R. (3d) 146 (C.A.), leave to appeal ref’d, [2003] S.C.C.A. No. 4, where at paragraph 15, Rosenberg J.A. held that the trial judge, in ruling that the voluntariness of the appellant’s statement had been established, did not apply the proper legal test when he held that it was merely conjectural to suppose that some officer from whom the court did not hear may have offered an inducement and, further, that any concern in that was displaced by the fact that the appellant had had the benefit of consulting counsel.

[85] In the next paragraph, Rosenberg J.A. went on to cite R. v. Koszulap (1974), 20 C.C.C. (2d) 193 (Ont. C.A.), in which, at p. 194, Arnup J.A. expressed his concern that “there were substantial portions of the 24-hour period about which none of the police officers who gave evidence on the voir dire could have any personal knowledge” and went on to state that “[i]t was ... incumbent on the Crown to show affirmatively that the accused was properly treated, and not questioned” (emphasis in original). Rosenberg J.A. also quoted from the judgment of Martin J.A., at pp. 197-98, who described the burden on the Crown in the following terms:

The onus was upon the prosecution to prove affirmatively all the surrounding circumstances leading up to the making of the confession. It was of particular importance that such onus be completely satisfied having regard to the lengthy period that the appellant was held in police custody prior to the making of the confession.

The burden of proving that a confession was made voluntarily is not discharged by evidence that it was preceded by a caution and by the evidence of the police officer who obtained the statement that it was not induced by threats or promises. All the surrounding circumstances must be examined in order to enable the Court to determine whether the statement was made voluntarily. [Emphasis in original.]

[86] Although the periods unaccounted for in Holmes and Koszulap were lengthier than the period here, I nonetheless consider those cases to be on all fours with the case at bar. While I do not mean to imply that anything that would compromise the voluntariness of the accused’s statement did occur, in the absence of the aforementioned accounting for more than six of the seven hours the accused was in custody prior to giving his statement, I was simply not satisfied beyond a reasonable doubt that the statement was voluntary. To draw the inference that Mr. Clement suggests would, in effect, reverse the onus of proof. The statement is therefore inadmissible.

Voluntariness of the May 19, 2010 Statement

[87] As outlined above, more than two weeks after his unconditional release, the accused was re-arrested. It is obvious from what transpired in the interview that the accused came to the May 19, 2010, post-arrest interview fully instructed in the manner in which he should deal with police questioning. For the most part, he heeded that advice. He declined to answer all but a relatively few questions concerning certain biographical information.

[88] The main complaint Ms. Gadhia makes in her written submissions is that the officers ignored the accused’s repeated attempts to exercise his right to silence by continuing to question him. Police are not obliged to desist questioning simply because an accused exercises his right to silence: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at paras. 42-48; R. v. Roy (2003), 180 C.C.C. (3d) 298 (Ont. C.A.). Although at paragraph 13 of Roy, Doherty J.A. spoke of repeated assertions by an accused that he does not want to speak providing “strong and sometimes conclusive evidence” that a subsequent statement was not voluntary, in this case, the officers’ persistence was to no avail; as earlier stated, with rare exception, the accused was resolute in refusing to answer their questions.

[89] In oral argument, on the other hand, counsel’s only complaint concerning the voluntariness of this statement was that the officers exhibited aggression and hostility. While I do not disagree that the officers exhibited a somewhat different attitude toward the accused than on May 4, 2010, and appeared to be somewhat frustrated with the fact that the accused declined to answer their questions, in my view it is a matter of no consequence in terms of voluntariness. I say that for four reasons.

[90] First, in my view, the different attitude on the part of the officers, of which counsel complains, did not rise to the level that it would, without more, compromise voluntariness.

[91] Second, even if the change in attitude had been such as to compromise voluntariness, the somewhat more aggressive style of questioning did not emerge until well after the accused made the only utterance in the statement that the Crown hopes to adduce. It is, of course, open to a court to find that a statement is partly voluntary and partly involuntary (R. v. Jack (1992), 76 Man. R. (2d) 168 (C.A.)), such that the portion the Crown does seek to adduce could have been found to be voluntary, in any event.

[92] Third, I find as a fact that the officers’ attitude had no effect on the accused. It is clear when one watches the video that the accused was resolute throughout the entire interview that he would not answer the officers’ questions, except, as earlier noted, in relatively rare instances. Respecting those questions the accused did answer in the May 19 interview, I conclude that the accused chose to answer them, not because he was intimidated or because his will had been overborne by the officers’ behaviour, but, rather, as earlier noted, the subject matter of the question was such that he was content to answer because he had determined that the answer could not incriminate him.

[93] Fourth, given:

(i) that more than two weeks had elapsed between the taking of the two statements;

(ii) that the investigators did not rely to any significant degree on things said on May 4 in their questioning of the accused on May 19;

(iii) that the accused had clearly had the benefit of legal advice; and

(iv) that the accused appeared to follow that advice by declining to answer questions directly pertinent to the homicide investigation;

I am satisfied beyond a reasonable doubt that nothing said or done by the police on May 4 had any impact on the manner in which the accused chose to govern himself during the May 19 interview.

[94] In the result, I am satisfied beyond any reasonable doubt that the May 19, 2010, statement was voluntary.

APPLICATION #2: EXCLUSION OF STATEMENTS FOR CHARTER BREACHES

APPLICATION #6: EXCLUSION OF DERIVATIVE EVIDENCE

ISSUES

[95] In terms of alleged Charter infringements respecting the statements of May 4, 2010, I am obliged to consider:

(i) whether the fact of Sgt. Adamson and Det. Ogg detaining the accused on May 4, 2010, and/or the manner in which the detention was effected, were such as to render his detention arbitrary, thereby infringing his right under s. 9;

(ii) whether Adamson’s “pat-down” of the accused and/or his later examination of the accused’s shirt constituted a search of the accused’s s. 8 right to be free from unreasonable search and/or seizure;

(iii) whether there was a breach of the accused’s s. 7 right to silence;

(iv) whether there was a breach of the accused’s s. 10(b) right to counsel; and

(v) if one or more of the accused’s Charter rights were breached, whether:

(a) the portion of the May 19 statement the Crown seeks to adduce ought to be excluded; or

(b) the evidence derived from police investigation of information revealed by the accused in his May 4 statement (to wit: the telephone records pertaining to the accused’s cellular telephone and the viva voce testimony of Ashley Bryan) ought to be excluded pursuant to s. 24(2) of the Charter.

POSITION OF THE CROWN

[96] Respecting the statements, it is the position of the Crown that the May 4 and May 19, 2010, statements are both constitutionally sound. Accordingly, there is no reason to exclude either the portion of the May 19, 2010, statement or any evidence derived from information gathered in the May 4 interview, which would have been inevitably discovered by means independent of the impugned statement, in any event.

POSITION OF THE ACCUSED

[97] In his May 4, 2010, statement, the accused revealed to the investigators his cellular telephone number. With the benefit of that information, the police were able to secure a production order to access records pertaining to that telephone. Therefore, since that statement has since been ruled involuntary, it would be unfair to permit the Crown to rely on those records at trial because, the accused asserts, but for the combined effect of breaches of his rights under ss. 7, 8, 9 and 10(b) of the Charter, he would not have told the police his telephone number and they would not have had the telephone from which to learn the number for themselves. Absent both those sources, the accused contends, the police would never have discovered the records the Crown now seeks to adduce as evidence against him at his trial. Furthermore, without the telephone records, the police never would have discovered the existence of the accused’s then girlfriend, Ashley Bryan, such that it would also be unfair to permit the Crown to call her as a witness against the accused.

[98] Respecting the May 19, 2010, statement, as I understand counsel’s position, Ms. Gadhia takes no issue with the constitutionality of this statement per se, but argues that it should be excluded by virtue of being tainted by the Charter breaches that occurred on May 4.

DISCUSSION

Did Sgt. Adamson arbitrarily detain the accused, thereby infringing s. 9?

[99] In R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, the Supreme Court confirmed the existence of the power of a police officer to detain a suspect for investigation. At paragraph 31, Abella J. observed:

The determination will focus on the nature of the situation, including the seriousness of the offence, as well as on the information known to the police about the suspect or the crime, and the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope. This means balancing the seriousness of the risk to public or individual safety with the liberty interests of members of the public to determine whether, given the extent of the risk, the nature of the stop is no more intrusive of liberty interests than is reasonably necessary to address the risk.

[100] In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paragraph 34, the court held:

The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or ongoing criminal offence.

[101] In R. v. Perjalian, 2011 BCCA 323, 274 C.C.C. (3d) 432, at paragraph 52, speaking for the court, Neilson J.A. stated:

The standard of proof for reasonable grounds is reasonable probability. This is something more than mere suspicion, but less than the civil standard of proof. In considering whether that standard has been met the circumstances must be considered in their totality, rather than on a piecemeal basis: R. v. Jir, 2010 BCCA 497, 295 B.C.A.C. 231 at paras. 27-28, 264 C.C.C. (3d) 64.

That said, reasonable grounds to detain are less than reasonable grounds to arrest: Mann, at para. 27. In R. v. Willis, 2003 MBCA 54, 174 C.C.C. (3d) 406, at paragraphs 23-28, leave to appeal ref’d, [2003] S.C.C.A. No. 281, the court held that an officer can be said to have articulable cause to detain even though the person detained does not precisely match the description of a suspect, but as a whole the surrounding circumstances support a reasonable suspicion. In this case, however, I am of the opinion that the accused matched very closely the Warren description.

[102] In R. v. Suberu, 2007 ONCA 60, 85 O.R. (3d) 127, at paragraph 40, aff’d, 2009 SCC 33, [2009] 2 S.C.R. 460, Doherty J.A. stated, “Police officers are authorized to detain persons for investigative purposes where there is a clear nexus between that individual and a recent or ongoing criminal offence.” I find as a fact that there was such a nexus in the case at bar.

[103] In R. v. Johnson, 2009 MBQB 281, [2009] M.J. No. 454, police officers investigating the discovery of a dead body observed the accused nearby. Because, in the officers’ opinion, the accused fit the description of a possible suspect, they advised the accused they were detaining him for investigation. At trial, defence counsel argued that Johnson’s Charter rights were violated. In particular, by virtue of what counsel contended were differences[^15] between the description the police had of a possible suspect and the appearance of the accused, counsel argued that there was no proper basis to have stopped the accused, such that the investigative detention was therefore arbitrary and a breach of s. 9 of the Charter. McKelvey J. disagreed.

[104] In R. v. Greaves, 2004 BCCA 484, 189 C.C.C. (3d) 305, the appellant was initially stopped by police for the sole purpose of determining his identity. He gave misleading answers and his behaviour was suspicious; his detention lasted approximately 40 minutes. In the course of his detention, the appellant was searched. As a result of that search contraband was seized and he was arrested. At paragraph 33, the court held:

The Supreme Court held in Mann that a common law investigative detention power does exist. This flows from the ancillary powers doctrine and the duties of police to preserve the peace, prevent crime and protect life and property: see R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.), at 661; and R. v. Dedman, [1985] 2 S.C.R. 2 at 32-34, 20 C.C.C. (3d) 97 at 119-20. The power is not, however, a general power to detain whenever such a detention will assist the police in the execution of their duties: Mann, para. 17. In order that an investigative detention not be arbitrary and thereby offend s. 9 of the Charter, it must fulfill two conditions. First, the police must have "reasonable grounds to detain" in the sense that they reasonably suspect that the individual detained was involved in a crime under investigation. There must be both a subjective and objective basis for that belief. Second, the detention must be "reasonably necessary" in all the circumstances, including the nature of the liberty interfered with and the public purpose the interference serves.

[105] In R. v. St. Louis, [2007] O.J. No. 1655 (S.C.J.), the police were investigating a robbery in the early morning hours. They detained five men. St. Louis was detained for 20 minutes. Dawson J. held that it was reasonable in the circumstances because the men were giving different stories and the officers had asked for back up.

[106] In R. v. Trieu, 2010 BCCA 540, 272 C.C.C. (3d) 237, the court held, relying on Greaves, that an investigative detention of some 25 minutes, almost exactly the time involved in the case at bar, was not arbitrary (at para 18). The police upon the initial detention took possession of Trieu’s cellular telephone. Because the propriety of that seizure was only raised for the first time on appeal, the Court of Appeal declined to deal with this issue.

[107] In R. v. Scott, 2004 NSCA 141, 191 C.C.C. (3d) 183, leave to appeal ref’d, [2005] S.C.C.A. No. 24, an investigative detention of some 30 minutes was held not to amount to an arbitrary detention.

[108] In R. v. Chaif-Gust, 2011 BCCA 528, 280 C.C.C. (3d) 548, the appellant, upon leaving a residence suspected to be a marijuana grow-op, was stopped by police officers, ordered to the ground and then handcuffed. The officers neither informed the accused of the reason for his detention nor advised him of his right to counsel. He was then placed in a police van where he remained for 42 minutes. Accepting the officers’ explanation that the delay in dealing with the accused was necessary in order that they could to conduct a search of the residence, the trial judge held that the detention was not arbitrary. On appeal, while upholding the trial judge’s finding in that regard, Finch C.J.B.C. stated, at paragraph 43:

It is important to emphasize, however, that the police cannot justify a detention of excessive length on the basis of operational expediency. While I agree with the trial judge that the time required to search an entire residence will usually justify a longer detention of the building's occupants than would a simple street check, the length of the detention cannot be disproportionate to the requirements of the investigation involved.

[109] In this case, given the seriousness of the matter under investigation, the fact that the accused closely fit the description of one of the suspects and the further fact that the accused had no identification (thereby requiring the officers to take unusual, and time consuming, steps to confirm his identity), I am firmly of the view that the length of the detention was not “disproportionate to the requirements of the investigation”.

[110] The accused contends that Det. Ogg was acting on information that amounted to no more than a hunch, such that, objectively viewed, there were no reasonable grounds upon which to detain him. Further, he alleges that the manner in which the detention occurred was not reasonable. In combination, this amounted, according to Ms. Gadhia’s written submissions, to “an egregious breach [of] his rights under s.9 of the Charter.”[^16] I disagree for the following reasons.

[111] First, Ogg was of the view that this accused fit the description that Ms. Warren had given to the police. In my opinion, her subjective opinion is readily sustainable on an objective analysis.

[112] Second, not only did the accused fit Ms. Warren’s description, but, unlike Johnson, where the accused was doing nothing out of the ordinary, I find as a fact that Mr. Williams was acting in a suspicious manner.

[113] Ogg observed the accused to be staring into the same yard where the man who fit that description had, according to Warren, jettisoned clothing the day before and where there was, at that moment, a police presence. At the same time as the accused was staring into the yard, he was, to Ogg’s observation, trying to conceal himself from the police officers at 93 Earlsdale by using her car as a blind. Then, when an officer at 93 Earlsdale appeared to notice the accused and started to come toward him, the accused immediately left.

[114] Based on the facts outlined above, in my opinion, Ogg’s desire to investigate the accused was objectively reasonable and, thus, not arbitrary. Indeed, as I indicated in my oral ruling on this issue on January 10, 2013, Ogg’s observations on May 4, 2010, were such that, not only was the detention not arbitrary, but, rather, she would, in my opinion, have been derelict in her duty had she not attempted to investigate the accused: Johnson, at para. 19.

[115] Turning from the justification for the detention to the manner in which it was effected, it is well settled that, in determining whether a detention is arbitrary, not only must the grounds to detain be considered, but also the manner in which the detention is carried out: R. v. Aucoin, 2012 SCC 66, [2012] S.C.J. No. 66; Suberu, at para. 40. Therefore, I wish to deal briefly with that issue.

[116] To begin, Adamson stepped out of his vehicle, grabbed the accused by the arm, told him to let his bicycle drop and then guided him to the side of his vehicle, whereupon he then conducted the pat-down search. Ms. Gadhia complains that there was no necessity or justification either for using physical force at this point or for subjecting the accused to a pat-down search. I disagree.

[117] In R. v. Crocker, 2009 BCCA 388, 247 C.C.C. (3d) 193, at paragraph 25, leave to appeal ref’d, [2009] S.C.C.A. No. 466, Smith J.A. held that:

Mann authorizes a protective safety search incidental to a lawful investigative detention where an officer believes, on reasonable grounds, that his or her own safety, or the safety of others, is at risk, and the search is reasonably necessary in light of the totality of the circumstances (paras. 40 and 45). The officer must have an honest belief in the risk to his and others' safety and there must be objective grounds, based on all of the known facts and circumstances, from which reasonable inferences can be drawn to support the officer's subjective belief (paras. 41 and 43). A search will not be justified if it is based on "a vague or non-existent concern for safety... [or] premised upon hunches or mere intuition" (para. 40).

Later, at paragraph 62, Smith J.A. went on to stipulate that the officer’s subjective view must be measured against an objective standard in order to determine its reasonableness.

[118] In the case at bar, the violent crime Adamson and his colleagues were investigating made it objectively reasonable for Adamson to regard the accused as potentially armed and dangerous. Therefore, it was reasonable to employ the level of physical force he did in initially stopping the accused and reasonable to pat him down: R. v. Agengo, 2011 ABQB 171, 506 A.R. 344.

[119] Ms. Gadhia also expressed concern that, once detained, it was unnecessary for the police to handcuff the accused and unnecessary to leave him in the police car for just under 30 minutes while they conducted their investigation.

[120] As in the case at bar, counsel in Chaif-Gust argued that the nature of the detention, in particular, handcuffing the appellant and putting him in a locked vehicle, constituted a de facto arrest. At paragraph 48, Finch C.J.B.C. disagreed:

The use of handcuffs or a police wagon do not, in and of themselves, render an otherwise reasonable detention a de facto arrest. The trial judge found on the facts that Constable Wong "placed both suspects into the wagon because he could not have safely controlled both suspects at the same time that he was performing his containment duties at the front of the residence." She concluded from this fact that "the handcuffing of the accused and his fellow suspect and the decision to lock them in the police wagon while the constable attended to his other duties was a necessary and reasonable step in the circumstances."

[121] In this case, it was not unreasonable in all the circumstances to place the accused in the police car. Arguably, given that it was a very warm day, he might well have been more comfortable in the air conditioned car than he would have been had he been forced to remain standing outside in the heat. On the other hand, the need to handcuff the accused in this case was not as pressing as in Chaif-Gust, such that the detention might well have been safely effected without handcuffing him at all. That said, I am not prepared to find that the fact of handcuffing him turned the detention from one that was otherwise reasonable into one that was arbitrary.

[122] As for the length of time the accused was detained, in light of the fact that the accused had no identification on his person, I do not consider 30 minutes to be beyond the pale. As noted above, in Greaves, a 40 minute detention was held not to be arbitrary where, as here, the time was required largely as a function of the officers’ difficulty in confirming the identity of the accused.

[123] Section 10(a) of the Charter requires that “[a]t a minimum, individuals who are detained for investigative purposes must therefore be advised, in clear and simple language, of the reasons for the detention”: Mann, at para. 21. That was done in this case. Ogg said that she told the accused, within seconds of Adamson having stopped him, that she was detaining him to investigate him in relation to the shooting the day before. Adamson confirmed that Ogg said this to the accused.

[124] Relying on R. v. Watson, 2010 ONSC 448, [2010] O.J. No. 280, Ms. Gadhia further argues that the subsequent arrest of the accused is irremediably tainted by the “egregious” nature of the s. 9 breach occasioned by the investigative detention. I disagree.

[125] First, I do not accept that there was a s. 9 breach occasioned by the investigative detention.

[126] Second, even if I were to accept that proposition, I do not accept that Charter breaches cannot be remediated, as it were. Provided there is a sufficient gap temporally and/or causally between a Charter breach and the subsequent gathering of the impugned evidence, generally the admission of the evidence will not tend to put the administration of justice into disrepute.

[127] Before leaving this issue, I wish to note, en passant, that, while Ms. Gadhia argued strenuously that there were no objective grounds for the detention, she did not explicitly assert that there were no grounds for the subsequent arrest. However, apart from confirming the accused’s identity, the police did not learn anything more about the accused’s involvement in the homicide during the course of the investigative detention. Therefore, in fairness to Ms. Gadhia, an assertion that there were no reasonable grounds could, I suppose, be taken as an implicit assertion that, a fortiori, there were no grounds to arrest. I mention this not to be pedantic or critical of counsel’s oversight, but, rather, to make the following point. Even allowing for the tacit assertion that there were no grounds for arrest, there was no assertion by Ms. Gadhia, either in her extensive cross-examination of Ogg or in her written or oral argument, that Ogg arrested the accused in order to further facilitate the police investigation. Such a course of action would have clearly been a Charter breach: R. v Duguay (1985), 50 O.R. (2d) 375 (C.A.).

[128] In the peculiar circumstances of this case, namely, where the accused was released unconditionally approximately nine hours after he was first detained, it is a matter to be considered. I am not concerned on this ground for the following reasons. First, although Ogg was not asked directly by either counsel, it would appear that the decision to release the accused was predicated, at least in part, on the fact that in his statement to the police the accused gave an alibi, albeit not a complete one. Second, as noted above, it has not been suggested to the officer or to this court that the arrest was improperly motivated. On the evidence I have heard, I am satisfied that Ogg honestly believed she had grounds to arrest. I am satisfied that those grounds are objectively sustainable.

[129] In the final analysis on this issue, respecting both the reason for detaining the accused and the manner in which that detention was effected, I conclude that the detention was reasonable in all the circumstances and not arbitrary. That said, no s. 9 breach has been established.

Did Sgt. Adamson’s “pat-down” of the accused constitute a breach of s. 8?

[130] Where a search is conducted without prior judicial authorization, the Crown bears the burden of showing it was reasonable to conduct the search and, further, that the search was conducted in a reasonable manner: R. v. Haas (2005), 200 C.C.C. (3d) 81 (Ont. C.A.), at paras. 24-27, leave to appeal ref’d, [2005] S.C.C.A. No. 423; R. v. Gundy, 2008 ONCA 284, 231 C.C.C. (3d) 26, at para. 36.

[131] In this case, Ms. Gadhia asserts that Adamson’s intrusion into her client’s trouser pocket (and finding the business card and the cellular telephone) amounted to a search that was neither authorized by law nor carried out in a reasonable manner and was therefore a breach of s. 8.

[132] Adamson said that he indicated to the accused that he wanted to search him and, although he said he could not recall the precise words the accused spoke when he replied, Adamson said the accused consented. I place no weight on the consent, however, because, as Adamson freely admitted, this all took place while he had physical hold of the accused. Looking at the matter realistically, I am prepared to infer the accused may well have felt that he did not have any choice at that point but to comply: R. v. Wills (1992), 7 O.R. (3d) 337 (C.A.); R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 30 and 31.

[133] In Johnson, the defence argued that there had been a breach of s. 8 because, in the course of questioning the accused, the officers observed a red stain on his shoe. The accused advised that he worked at a donut shop and the substance was spilled syrup. He was placed in a police car for somewhere between 45 to 60 minutes while police attempted to verify his account of his whereabouts. McKelvey J. held that the officers’ observations did not breach s. 8 and, while he found a breach of s. 10(b) because the police did not advise the accused of his right to counsel, he held that the breach was not causally linked to the observation, which the officers would have made irrespective of whether they had advised the accused of his s. 10(b) rights. McKelvey J. rejected the defence suggestion that the pat-down of the accused was unreasonable, stating, at paragraph 19, “The pat-down search was a reasonable course of conduct for officer safety reasons, particularly when the suspect was identified on the police computer as carrying a knife.”

[134] Likewise, in the case at bar, I do not accept the defence position that it was unreasonable to pat down the accused. On the contrary, knowing (i) that a man had been shot to death the previous day very near to where this encounter took place, (ii) that the suspects and at least one firearm were still outstanding, and (iii) that the accused fit the description of one of those suspects, it was entirely reasonable, in my view, for Adamson, as the first officer to make contact with the accused, to be concerned for his own safety and that of his fellow officers.

[135] Further, I do not agree with Ms Gadhia’s characterization of the pat-down as “a strip search”. In her factum, Ms. Gadhia relies on R. v. Ali, 2011 ONSC 424, [2011] O.J. No. 249, at paragraph 59, where the court gave the following definition of a strip search: “the removal or rearrangement of some or all of the clothing so as to permit a visual inspection of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments.” That simply did not happen in this case. There was no inspection of the accused’s private areas. While it is unfortunate that the accused’s trousers fell down in the course of the pat-down, subject to the comments I am about to make,[^17] I am of the view that the manner in which the pat-down was carried out was nonetheless reasonable.

[136] The accused was wearing very loose fitting trousers. I do not accept, as Ms. Gadhia suggests, that Adamson caused the accused’s trousers to slide to the ground by checking the doo rag, or bandana, attached to his belt loops. Indeed, Adamson said that the pants were already sliding down before he checked the bandana. I accept his evidence on this point. That said, it is not the officer’s fault that the accused chose to wear ill-fitting clothing that would not stay where it was meant to stay.

[137] Given that the pants were repeatedly sliding down and given, further, that, as a result, the accused was disobeying Adamson’s direction to keep his hands on Adamson’s vehicle, it was entirely reasonable for Adamson to tell the accused to let his pants slide to the ground. Equally, it was reasonable for Adamson to tell the accused to step out of his shoes and pants. Adamson indicated in his evidence, which I accept, that he did this for the accused’s safety,[^18] as well as his own.

[138] Ms. Gadhia characterized Adamson’s actions as having “rendered the [accused] half dressed.”[^19] I agree that the average man would feel a certain indignity if he were made to stand on a public street with his pants around his ankles. I disagree, however, that this accused was subjected to any particular indignity by what transpired. Immediately the pants fell to the ground, the accused was told to step out of them, which he did. Therefore, at most, his pants were only at his ankles for a matter of a few seconds. Again, I note that, contrary to counsel’s repeated assertion in her factum, this was not a strip search. The accused was, after all, wearing basketball shorts underneath his trousers. In other words, had the accused not been wearing the trousers, he would still have been dressed in such a manner that he would not have looked at all conspicuous in public. Thus, I conclude that having his pants fall to his ankles did not involve the level of embarrassment or indignity for this accused that would have attended such an incident had he not been wearing basketball shorts underneath them.

[139] I turn next to the scope of the pat-down. As noted above, the defence complains that the frisk was unconstitutional because the officer did more than simply pat the accused down; rather, he engaged in an impermissible search when he extracted a cellular telephone and a business card from the accused’s trousers. I agree. Since Mann, the law is clear that the pat-down must not extend to a search for evidence, as opposed to weapons.

[140] As noted above, Adamson says that he found a cellular telephone and a business card in the accused’s right front pants pocket. Adamson said he could not recall whether he found these items before or after the accused’s pants fell to the ground. I conclude that this took place before the pants came down because Adamson said he was looking for weapons and it would make no sense for him to do so once the accused was no longer wearing the trousers. Moreover, Sgt. Morris testified that Adamson handed her the cellular telephone and the business card while the accused still had his trousers on. Inasmuch as Adamson said that, once they had fallen to the ground, he kicked the trousers over toward Ogg, he would not have been in a position to hand the items to Morris unless he had already taken them from the accused’s pocket before the pants fell.

[141] That said, I can see no reason why it was necessary to go into the accused’s pocket in the course of patting him down for weapons. Adamson having done so, that constituted a search that exceeded the permissible scope of a pat-down for officer safety.

[142] I am also concerned that, once the accused was lodged in the car, but before he had been arrested, Adamson had him step out of the car so he could examine his shirt for what Morris thought might be blood staining. As noted above, Adamson lifted up the accused’s two shirts and the white vest (tank top) he was wearing without removing those garments from his body. This was a search for evidence and had nothing to do with officer safety. As such, it was beyond the scope of what Adamson was entitled to examine in the course of an investigative detention.

[143] For the foregoing reasons, I find a breach of section 8.

Was there a breach of the accused’s s. 10(b) rights?

[144] Where the police detain a person for investigation, it is clear that they must advise the detainee of his right to counsel: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460. In this case, the Crown concedes that the accused was detained from the point at which Adamson first took hold of him.

[145] At the point at which the accused was initially detained, Ogg says that she advised him that he “could consult a lawyer.” According to her evidence, she said nothing further in this regard. Despite making copious notes of other things she did that day, Ogg made no note of having said this to the accused.

[146] From the fact that Ogg did not make a note, Ms. Gadhia asks me to infer that Ogg did not, in fact, say this to the accused. However, Ogg’s evidence on the point was not shaken in cross-examination and there is no evidence to the contrary. Accordingly, despite her failure to make a note, I find as a fact that Ogg did tell the accused that he could consult a lawyer. That, however, does not end the matter.

[147] Even accepting that Ogg told the accused that he could consult a lawyer, in my view that was not an adequate rendition of the accused’s s. 10(b) right, which must include “information about access to immediate, although temporary legal advice irrespective of financial status (‘duty counsel’)”: R. v. Bartle, [1994] 3 S.C.R. 173, at p. 195; see also R. v. Prosper, [1994] 3 S.C.R. 236, at p. 279. Ogg having failed to give this advice, I find that there was a breach of the informational component of s. 10(b) during the investigative detention.

[148] That said, although Adamson asked the accused a number of questions during the detention, at least one of which was investigative in nature,[^20] and in so doing breached the accused s. 10(b) rights, nothing material emerged from the accused’s responses to those questions. Further, I find as a fact that there was no connection between those questions and the statement taken many hours later: R. v. Newell, 2012 ONSC 2947, [2012] O.J. No. 2327, at para. 43 ff.

[149] When the accused was finally arrested, he was given a full recital of his s. 10(b) rights. Adamson immediately asked the accused whether he understood and he responded that he did. He indicated that he did not wish to consult a lawyer, but would prefer, instead, to speak to his grandfather.

[150] Once at the station, Adamson advised the booking sergeant, in the presence of the accused, that he had told the accused of his right to counsel. The accused said nothing at that time to indicate any confusion concerning his right to speak to a lawyer or any failure on his part to comprehend what he had been told.

[151] Further, even though the accused indicated that he did not want to speak with counsel, Ogg took steps to ensure that he was given an opportunity to speak with Duty Counsel. After that, the accused was afforded the opportunity to speak to his own lawyer, Ms. Gadhia. Thus, by the time the accused was finally interviewed, any failing respecting advising the accused of the right to counsel had been ameliorated.

[152] Notwithstanding the accused was advised of his right to counsel, Ms. Gadhia argues that the accused “lacked the emotional capacity to properly understand and fully appreciate his rights to counsel.”[^21] Ms. Gadhia relies for this assertion on the fact that one of the officers involved in the case, D/C Bartlett, made a note that at one point while the accused was in the CIB the accused had a “look of concern on his face and a tear rolling down his left cheek.” I disagree that the accused did not understand his right to counsel.

[153] To begin, it is hardly surprising that a person under arrest for first degree murder might be, and might appear to be, concerned. The accused did not testify. The evidence is clear, however, that when advised of his right the accused indicated that he understood.

[154] The accused also argues that Ogg’s statement to the effect that he may or may not be released that day caused him to be confused. There is no evidence to support this assertion. Moreover, the suggestion does not accord with common sense. Even assuming, arguendo, that, having just been arrested for the offence of first degree murder, the accused might have been somewhat confused as to how he could be released the same day, I see no nexus whatsoever between his state of mind on that issue and the entirely discrete question of whether he understood his right to counsel.

[155] In R. v. Anderson (1984), 10 C.C.C. (3d) 417 (Ont. C.A.), at p. 430, speaking for the court, Tarnopolsky J.A. stated:

Surely, there must be something in the evidence, for example, in the testimony of the police officers or the accused, to indicate that there were special circumstances which required a further explanation by the police of what is meant by the right to counsel in s. 10(b).

[156] At the next page, Tarnopolsky J.A. went on to say:

I am of the view that, absent proof of circumstances indicating that the accused did not understand his right to retain counsel when he was informed of it, the onus has to be on him to prove that he asked for the right but it was denied, or he was denied any opportunity to even ask for it. No such evidence was put forth in this case.

[157] In R. v. Baig (1985), 20 C.C.C. (3d) 515 (Ont. C.A.), aff’d, [1987] 2 S.C.R. 537, the Court of Appeal held that there were no “special circumstances” requiring the arresting officers to probe the appellant's comprehension of the rights given to him where the accused “was sober and unimpaired by the use of drugs, ... displayed no difficulty of hearing, appeared to be intelligent and had a good grasp of the English language” (at p. 523). Lacourcière J.A., speaking for the court, held, at p. 524:

It should be clear, from what I have said, that the issue in the present appeal relates to the respondent's understanding of his Charter rights; in the ordinary case, after the Charter rights under s. 10(b) have been read, the suspect will acknowledge that he understands his rights in response to the officer's question. There is, however, no duty on the prosecution to probe into the suspect's degree of understanding or comprehension or to adduce positive evidence in the absence of special circumstances as outlined above, or in the absence of words or conduct from which it could be reasonably inferred that the suspect did not understand his rights.

[158] In my view, where an accused has been advised of his right to counsel, has indicated that he understands that right, and has twice availed himself of the right, it will take more than a look of concern and a tear on an accused’s cheek to amount to the “special circumstances” of which Lacourcière J.A. spoke. In the absence of any evidence from the accused to the effect that it confused him in terms of his right to counsel, the addition of Ogg’s comment concerning whether the accused might be released adds nothing to the equation.

[159] In summary on this issue, I adopt as apposite the following passage from paragraph 62 of Perjalian:

These Charter violations were thus fleeting and, while Mr. Perjalian argues they undercut his ability to make an informed decision about how to conduct himself with the police, it is difficult to envisage how prompter attention to his s. 10 rights would have altered his conduct in any meaningful way.

[160] Considering that, when advised of his right to counsel upon arrest, the accused in this case did not want to speak to a lawyer, then, as in Perjalian, here, too, I find it hard to imagine that the accused would have availed himself of the right to counsel had he been properly advised upon first being detained.

Did the actions of the police compromise the accused’s s. 7 right to silence?

[161] The accused asserts that his right to silence, as guaranteed by s. 7 of the Charter, was breached because he was not given the standard caution upon first being detained. I disagree. While it is true that none of the officers gave the accused a standard caution, nor, with one exception, did they ask him any investigative questions during the period in which he was detained prior to his arrest.

[162] Once at the station, the accused, as noted above, had an opportunity to speak to both Duty Counsel and, later, his own counsel. One can only assume that he was fully and properly apprised of his right to remain silent. Furthermore, at the outset of the formal interview, Det. Vruna gave the accused both the primary and secondary cautions. After giving both, then, as the following passage makes clear, Det. Vruna went on, in very basic language, to ensure that the accused understood what she had just said:

Vruna: Okay, alright. So um I’m gonna ask you some questions now okay. I’m gonna do some talking and if you want to answer you can answer me and if you don’t want to answer you can let me know you don’t want to answer okay? Alright do you understand that?

Williams: Yes. I do.

[163] It is well settled that s. 7 of the Charter includes as a principle of fundamental justice the right to silence: Singh. Relying on paragraph 8 of Singh, Ms. Gadhia argues that this court’s finding that the May 4 statement was involuntary also establishes that the accused’s right to silence was breached. With respect, Singh does not stand for that proposition. Rather, what the court said in Singh was that the right to silence and the concept of voluntariness are “functionally equivalent” such that, where the Crown proves voluntariness beyond a reasonable doubt, then, as a matter of logic, the defence will be unable to prove a breach of the right to silence on a balance of probabilities and, where the defence proves a breach of the right to silence on a balance of probabilities, the Crown will be unable to prove voluntariness beyond a reasonable doubt. The proposition that Ms. Gadhia advances, however – that, where the Crown fails to prove voluntariness, then a breach of s. 7 is necessarily established – is wrong both in law and logic.[^22]

[164] In summary, I am not satisfied on a balance of probabilities that the accused was deprived of his right to silence; thus, no s. 7 breach has been established.

Did the May 4 Statement Taint the May 19 Statement?

[165] I turn now to the “derived confessions rule”. In R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at paragraph 21, speaking for the court, Fish J. held:

In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct: Strachan, at p. 1005. The required connection between the breach and the subsequent statement may be "temporal, contextual, causal or a combination of the three": R. v. Plaha (2004), 189 O.A.C. 376, at para. 45. A connection that is merely "remote" or "tenuous" will not suffice: R. v. Goldhart, [1996] 2 S.C.R. 463, at para. 40; Plaha, at para. 45.

[166] The rule provides that where a statement arises out of an earlier statement that has been ruled inadmissible or “when they are one and the same”, the later statement must be excluded: R. v. G. (B.), [1999] 2 S.C.R. 475, at para. 21. In deciding this issue, the court must consider the extent of the relation between the statements. Factors to be considered include:

(i) the time span between the statements;

(ii) reference by the authorities to the earlier statement during the taking of the later statement;

(iii) the discovery of additional incriminating evidence subsequent to the first statement;

(iv) the presence of the same police officers at both interrogations; and

(v) other similarities between the two sets of circumstances.

[167] In Hobbins, at p. 558, Laskin C.J. stated:

There can be no hard and fast rule that merely because a prior statement is ruled inadmissible a second statement taken by the same interrogating officers must be equally vulnerable. Factual considerations must govern, including similarity of circumstances and of police conduct and the lapse of time between the obtaining of the two statements.

[168] In R. v. I. (L.R.) and T. (E.), [1993] 4 S.C.R. 504, at p. 526, Sopinka J. stated:

In applying these factors, a subsequent confession would be involuntary if either the tainting features which disqualified the first confession continued to be present or if the fact that the first statement was made was a substantial factor contributing to the making of the second statement.

[169] For the following reasons, I have concluded that the May 4, 2010 statement does not taint the May 19 statement.

[170] First, I have made no positive finding of any misconduct on the part of the police that would render the statement involuntary. Rather, as I earlier explained, the ruling turned on an absence of proof.

[171] Second, turning to the impact of the Charter breaches on the May 4, 2010, statement, while not wishing to seem dismissive of those breaches, they were not intentional and, as I will explain infra, they did not have any impact on the accused’s Charter-protected interests in terms of deciding to make a statement. Accordingly, as I indicated in my oral remarks on this issue, I would not have excluded either of the statements on Charter grounds.

[172] Third, more than two weeks elapsed between the two statements, during which period the accused had the benefit of having further consulted with counsel, such that he came well equipped on May 19 to resist the interrogatories put to him by the officers. The innumerable instances when the accused indicated that he did not want to answer questions on the advice of counsel[^23] are ample proof of that. On the other hand, the accused chose to answer questions when, as I have earlier indicated, it was obvious to him that the question was of such a nature that the answer could not be used to incriminate him. I conclude from his demeanour and his responses that nothing that took place on May 4 affected the accused in such a way that he felt compelled to answer the officers’ questions on May 19.

[173] Fourth, other than the fact that the each interview took place in a police station and the two interviewing officers were the same, there are no particular similarities between the two sets of circumstances.

[174] Fifth, the only fact the Crown seeks to prove from the May 19 statement is that the accused has no children.[^24] Other than that, the Crown does not seek to put any of the May 19 statement before the jury. That subject was not discussed, either directly or indirectly, on May 4.

Section 24 Considerations

[175] Having found breaches of both s. 8 and s. 10(b) on May 4, 2010, it remains to be determined whether the evidence sought to be adduced by the Crown, of which the accused complains, should be excluded. In deciding these issues, pursuant to Grant I am obliged to consider:

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

(ii) the impact of the breaches on the Charter-protected interests of the accused on May 4, 2010, and the impact on the trial from the admission into evidence of:

(a) the seized cellular telephone and records related thereto;

(b) the viva voce evidence of Ashley Bryan; and

(iii) society’s interest in an adjudication on the merits.

[176] Before discussing those topics, however, I wish to make the following point. Thus far, for purposes of clarity of exposition, I have dealt with the alleged Charter breaches in a compartmentalized fashion and, to a certain extent, I will continue to do so. Having said that, I appreciate that there can be what has been termed a “synergistic effect” to multiple breaches of an accused’s Charter rights: Perjalian, at para. 67. In applying the Grant analysis, albeit I will continue to discuss the issues separately, I will nonetheless consider the cumulative effect of the breaches I have found.

Seriousness of the Charter-infringing state conduct

[177] In R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.), at paragraph 41, Doherty J.A. characterized police conduct for purposes of s. 24(2) as follows:

Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights... What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct. [Citations omitted.]

Section 8 Breach

[178] Dealing first with the s. 8 breach, in Aucoin, at paragraph 47, Moldaver J. held that it was significant that officer in that case was not searching for evidence when he conducted the impugned pat-down search. Rather, he searched the appellant for reasons of officer safety and the appellant’s safety. He did so as a precursor to asking the appellant to be seated in his police cruiser and not as a ruse to look for evidence.

[179] In this case, it is obvious to me that Adamson simply did not know that he was not entitled to search the accused’s pocket, because he freely admits that he took the phone and the card when it is clear that neither could have posed a threat to his safety or that of his fellow officers. I draw the same conclusion respecting Adamson lifting the accused’s shirts to check what Morris thought might be blood stains.

[180] As for Ogg, as the officer in charge of the investigation, she was responsible for directing the actions of the other officers and was present when Adamson went into the accused’s pocket and extracted the two items in question. That said, I am satisfied that Adamson’s action of going into the accused’s pocket was so quick that, in fairness to Ogg, she had no time to order him not to search the accused’s pocket.

[181] At paragraph 49 of Aucoin, Moldaver J. went on to say:

In the end, having regard to the trial judge's findings of fact, I am satisfied that Constable Burke was acting in good faith. His error was in not appreciating that the pat-down search would only be reasonable in the circumstances if it could be shown that it was reasonably necessary – in the sense that there were no other reasonable means available – to secure the appellant in the rear of the cruiser to address his concern that the appellant might walk away. But there was no intention on his part to misuse his powers; nor did he choose to ignore the appellant's Charter rights. These factors serve to attenuate the seriousness of the breach.

[182] In this case, I find as a fact that the search resulted from Adamson’s misunderstanding of the permissible scope of a pat-down search and that he had no intention of misusing his powers. Relying on Aucoin, that finding serves to attenuate the seriousness of the s. 8 breach.

[183] The s. 8 breach is also less serious than it would have been had something been discovered that formed the grounds, or part of the grounds, for the arrest. In this case, neither item discovered had any impact on the decision to arrest the accused. Rather, I find as a fact that the accused would have been arrested quite apart from the discovery of the two items and, once arrested, of course, the items would have been inevitably discovered in the search incident to arrest: R. v. Amofa, 2011 ONCA 368, [2011] O.J. No. 2095, at para. 29.

[184] A search is lawful if it is authorized either by statute or common law: Cloutier v. Langlois, [1990] 1 S.C.R. 158. One such example of a search authorized at common law is that which is incident to a lawful arrest. Moreover, as MacDonnell J. held in R. v. Findlater, 2010 ONSC 5141, [2010] O.J. No. 5319, at paragraph 17, “There is no requirement for reasonable and probable grounds to conduct a search incident to arrest: ‘[The] only requirement is that there be some reasonable basis for doing what the police officer did’: R. v. Caslake, [1998] 1 S.C.R. 51, at paragraph 20.”

[185] In Amofa, the appellant was searched prior to his arrest for trespassing under the Trespass to Property Act;[^25] the arresting officer found a handgun on the appellant’s person. In light of the fact that the officer had grounds to arrest, Blair J.A. agreed with the trial judge that if the search prior to arrest constituted a breach of s. 8, the breach was “trifling” (at para. 29).

[186] The reasonable basis in this case was that the police had reason to believe, based on what Patsy Warren had said, that the man who had been on her porch had later been seen with his hand to his ear, suggesting that he may well have been talking on the telephone. There were two men involved in the shooting, according to another witness. Thus, it would be reasonable to deduce that it might prove fruitful to search the accused’s telephone to check for recently called numbers as a means by which to possibly locate the other suspect. The fact that the cell phone could have been seized and examined as part of a search incident to arrest renders the breach less serious: R. v. Aslany, 2011 BCPC 14, [2011] B.C.J. No. 119.

[187] As for Adamson’s examination of the accused’s shirt, while a breach of s.8, it was of fleeting duration, not particularly intrusive and no evidence resulted from it.

[188] In the result, to borrow from Amofa, I find that the s. 8 breaches here were “trifling”.

Section 10(b) Breach

[189] Turning to s. 10(b), as I have earlier said, I am satisfied that Ogg did not deliberately breach the accused’s s. 10(b) right, but, rather, as with Adamson’s search, it was through ignorance of the applicable law that she failed to tell the accused what she ought to have told him.

[190] In Johnson, at no time was the accused read his rights during the course of the investigative detention, such that the Crown conceded a breach of s. 10(b). Yet, notwithstanding that concession, the evidence sought to be adduced by the Crown was not excluded.

[191] It is obviously important in any case, but certainly with respect to a detention in a matter as serious as the case at bar, for police officers to ensure that, upon detention, the accused is properly advised of his right to retain and instruct counsel.

[192] On the other hand, the seriousness of the breach is ameliorated somewhat by the fact that, when told at the outset of the detention that he could consult a lawyer, the accused indicated that he did not want to, but would, rather, be content to speak to his grandfather. The seriousness is further reduced by the fact that, even once properly advised of his right to counsel upon arrest, approximately one half hour after the initial detention, the accused still indicated that he did not wish to speak to a lawyer. Against that backdrop, it is hard to imagine that, had he been properly advised when he should have been, the accused would have conducted himself differently. Moreover, long before the accused revealed his telephone number during the May 4 interview with the Homicide Squad detectives, the 10(b) breach had been remedied and the accused had had the opportunity to speak at length to both Duty Counsel and his own lawyer. Inasmuch as the statement did not commence until nearly eight hours after the s. 10(b) breach, I find that the temporal connection is remote. I further find that there is no causal connection.

[193] Thus, like the s. 8 breach, I find that, in the particular circumstances of this case, that the breach, while not to be condoned, was not serious.

Impact on the Charter-Protected Interests of the Accused

Section 10(b) Breach

[194] Beginning with the breach of s. 10(b), while, as discussed above, Ogg should have informed the accused of his right to counsel in terms in keeping with Bartle and Prosper, there is neither direct evidence before me, nor any circumstantial evidence to suggest, that the accused did or said anything that he would not have done or said had he been properly informed of his 10(b) right upon being initially detained.[^26]

[195] It must be remembered that the accused was advised, however imperfectly, that he would be able to speak to a lawyer in due course. So, it is not as though Ogg simply failed to advert to the accused’s 10(b) rights. Further, apart from Adamson asking the accused whether he was right or left handed, which so far as I am aware has no significance to the case the Crown intends to present to the jury, the officers did not seek to extract any statements from the accused during the detention and the Crown does not seek to rely on anything the accused said or did while detained.

[196] It must also be remembered that the accused was properly advised of his right to counsel a short time after his initial detention and, although he initially indicated that he did not want to speak to a lawyer, he ultimately availed himself of that right, not once, but twice.

[197] Going forward, then, more than seven hours from the time of the breaches to the point at which the accused made his statement to the officers, I must consider whether it is probable that the breach of s. 10(b), or the combined effect of the s. 10(b) and s. 8 breaches, had any impact on the accused’s decision to make the impugned statement.

[198] I recognize, of course, as the above quoted passage from Wittwer illustrates, that there need not necessarily be a causal connection between one or more Charter breaches and the manner in which the evidence sought to be excluded was gathered. Rather, as Sopinka stated in R. v. Goldhart, [1996] 2 S.C.R. 463, at para. 40:

Although Therens and Strachan warned against over-reliance on causation and advocated an examination of the entire relationship between the Charter breach and the impugned evidence, causation was not entirely discarded. Accordingly, while a temporal link will often suffice, it is not always determinative. It will not be determinative if the connection between the securing of the evidence and the breach is remote. I take remote to mean that the connection is tenuous. The concept of remoteness relates not only to the temporal connection but to the causal connection as well. It follows that the mere presence of a temporal link is not necessarily sufficient. In obedience to the instruction that the whole of the relationship between the breach and the evidence be examined, it is appropriate for the court to consider the strength of the causal relationship. If both the temporal connection and the causal connection are tenuous, the court may very well conclude that the evidence was not obtained in a manner that infringes a right or freedom under the Charter. On the other hand, the temporal connection may be so strong that the Charter breach is an integral part of a single transaction. In that case, a causal connection that is weak or even absent will be of no importance. Once the principles of law are defined, the strength of the connection between the evidence obtained and the Charter breach is a question of fact. Accordingly, the applicability of s. 24(2) will be decided on a case-by-case basis as suggested by Dickson C.J. in Strachan. [Emphasis in original.]

[199] Respecting a temporal connection between a breach and the gathering of evidence sought to be excluded at trial, in R. v. Henrikson, 2005 MBCA 49, 196 C.C.C. (3d) 440, leave to appeal ref’d, [2005] S.C.C.A. No. 283, comments made by an accused were held to be admissible despite a s. 10(b) breach. At paragraph 25, Philp J.A. stated:

In my view, the temporal connection is too tenuous to support a finding that the comments of the accused were "obtained in a manner" that infringed the Charter. There will always be a temporal connection present when the admissibility of evidence obtained following a Charter breach is challenged. However, my review of the Goldhart principles and their application in subsequent cases convince me that there must be more than a mere connection in time to support a finding that evidence has been obtained in a manner that infringed Charter rights. In Flintoff, Finlayson J.A. noted that tort law has struggled with the limits of the potential reach of causation. I acknowledge that the same vagueness clouds the effect of a temporal connection between a Charter breach and impugned evidence. Whatever the limits of its reach may be, in my view, the temporal connection between the breach and the impugned evidence must be one of substance in order to support a conclusion that the evidence was obtained in a manner that infringed or denied a Charter right. A sufficiently strong connection to meet that requirement has been found when an examination of the whole of the relationship between the breach and the evidence reveals that they occurred in the course of a single transaction.

[200] In this case, in the more than seven hour interval between the s. 10(b) breach I have found and the time he gave his statement to police, the accused spoke to both Duty Counsel and, later, his own counsel. Against that backdrop, based on both the nature of what is said by the parties during the interview and the manner in which the accused conducted himself throughout, I find that there is neither a substantial temporal connection nor a causal connection between the breach and the accused’s decision to say what he said to the officers.

[201] Thus, as for May 4, apart from the fact that the accused was not told something he was entitled to be told, in light of my earlier finding that there was no causal connection between the s. 10(b) breach and only a remote temporal connection, I conclude that, for all practical purposes, the impact of the s. 10(b) breach on the accused’s Charter-protected interests was effectively nil.

[202] As for the present, given the fact that I have excluded the May 4 statement, I find that, for all practical purposes, the effect of the s. 10(b) breach on May 4, 2010, on the accused’s right to a fair trial, as protected by s. 7 of the Charter, is also nil.

Section 8 Breaches on May 4, 2010

[203] Like everyone in Canada, the accused had an interest in being free from unreasonable search of his person and seizure of his property. Thus, inasmuch as I have found the search of the accused’s pocket and the subsequent examination of his shirt on May 4 to be unconstitutional, I must assume some impact on that Charter-protected interest.

[204] On the one hand, at the risk of stating the obvious, a search of the person is considered to be intrusive: R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 87. On the other hand, in Cloutier v. Langlois, at p. 185, L’Heureux-Dubé J. held that a frisk search is a “relatively non-intrusive procedure” that lasts “only a few seconds”. See also R. v. Wilson, [2008] O.J. No. 5661 (S.C.J.), at para. 48.

[205] In this case, in light of the following facts:

(i) that Adamson was entitled to pat the accused down for reasons of officer safety;

(ii) that the search of the accused’s pocket was only minimally more intrusive than the degree of intrusion inherent in the pat-down search;

(iii) the examination of the accused’s shirt was fleeting, minimally intrusive and produced no evidence; and

(iv) that there is no evidence from the accused as to the impact of the breach on him;

I find, as noted above, that the impact on the accused’s Charter-protected interests was trifling.

Proposed Exclusion of “Derivative” Evidence

The Accused’s Cellular Telephone and Related Telephone Records

[206] In the case of the telephone records pertaining to the accused’s cellular telephone, Ms. Gadhia contends that the police only came to know the accused’s telephone number because he revealed it in the course of the statement now ruled involuntary. Therefore, she contends, the Crown ought not to be able to rely on evidence that it has improperly gleaned from the accused. I disagree for the following reasons.

[207] In R. v. Do, 2012 BCSC 411, [2012] B.C.J. No. 556, at paragraph 47, Fitch J. held:

As the actual impact on the accused's liberty and privacy interests flowing from the breach may properly be characterized as transient, I conclude that the impact of the constitutional infringements on the accused's Charter-protected interests was minimal. The reality is that the intrusions on the accused's liberty and privacy interests would have occurred in any event and within minutes of his investigative detention. The same evidence would have been discovered through constitutional means, or, at the very least, in a manner that did not infringe the accused's own privacy interests. In the result, I find that application of this branch of the Grant analysis favours admission of the evidence.

[208] In this case, as in Do, I find on the evidence before me that the accused would have been arrested irrespective of the discovery of the two items discovered in the illegal search. As noted above, I further find as a fact that neither the telephone nor the business card played any part in Ogg’s decision to arrest the accused. He would have been arrested quite apart from the search and, that being so, an officer would have searched his pockets eventually, in any event. Respecting the taking of the telephone, the only net difference between what actually happened and what ought to have happened is that the search of his right front pocket (as distinct from the simple pat-down for weapons) took place sooner than it ought to have.

[209] The cellular telephone was only officially seized by the police upon arresting the accused. Prior to that point, albeit Adamson had taken it out of the accused’s pocket, he had not seized it as such. Rather, both Adamson and Ogg indicated that, once it was discovered in the course of the pat-down search, it was simply being safeguarded while the investigative detention was under way. I accept their evidence on this point. I note, in particular, that other than to put it on the trunk of Morris’ car, there was no other dealing with the phone prior to the accused’s arrest. Once the accused was arrested, it was proper for the police to search his person incident to that arrest. Accordingly, I find that the cellular telephone would have been inevitably discovered. That said, the officers could have gotten the telephone number from the telephone itself.

[210] As for the propriety of discovering the telephone number from the telephone as part of a search incident to arrest, in R. v. Polius, [2009] O.J. No. 3074 (S.C.J.), Trafford J. found that the inspection of an accused’s cell phone as part of a search incident to arrest was a breach of s. 8 of the Charter because the officer could not provide a reasonable basis upon which to attribute evidentiary value to the phone or its content in relation to the reason for which the accused was under arrest.

[211] In this case, on the other hand, I am of the view that, on the following basis, the police would have been entitled to give the accused’s telephone a cursory examination within the legitimate scope of a search incident to arrest. As earlier noted, Ms. Warren had told the police that, when she saw the man, who had earlier been on her porch, later walking westbound on Earlsdale Ave., he had his hand to his ear. Although he was too far away for her to see if he had a telephone in his hand, it appeared to her as though he was talking on a cellular telephone. The police knew that there had been two men involved in the shooting. In all the circumstances, it was a fair inference that the man Ms. Warren said had been on her porch was one of them. Given that the police reasonably believed they had that same man in their custody, it would have been obvious that the telephone records relating to his telephone might be useful in identifying the other party to the shooting. In my view, “this combination of circumstances provided the police with a lawful basis for conducting a cursory search of the cell phone” to determine the telephone number pertaining to that telephone: R. v. Manley, 2011 ONCA 128, 269 C.C.C. (3d) 40, at para. 37.

[212] In those circumstances, had the police not learned the accused’s telephone number from him, it would have been appropriate to examine the telephone to acquire the number, in order that they could, in turn, secure a production order.

[213] Returning to the s. 8 breaches I have found occurred upon the initial detention of the accused, in Mann, the s. 8 breach led directly to the seizure of material that, in turn, became the principal evidence against the accused. In contrast, the breaches of s. 8 in this case did not result in the discovery of any evidence the prosecution now seeks to adduce. Rather, the evidence the Crown seeks to adduce arises consists of the records, which the police obtained by means of a lawful production order. In the circumstances, then, I find that the impact on the accused’s Charter-protected interests from the seizure of the phone is effectively nil.

[214] Ms. Gadhia argues that because the court excluded the accused’s May 4, 2010, statement, the telephone records that the police gained by way of a production order served on Telus must be excluded as “fruit of the poisonous tree”. Three points are apposite.

[215] First, the statement was excluded because the Crown failed to prove it voluntary and not because of a Charter breach. As I indicated orally when I announced the results of Applications 1 and 2, despite the above noted breaches, I would not have excluded the statement on Charter grounds. Rather, inasmuch as I find, as noted above, that the breach of s. 10(b) upon the initial detention of the accused had only a remote temporal connection and no causal connection to the accused’s later revelation of his telephone number in his statement to the officers, the police would have come to learn the accused’s telephone number, in any event, quite independently of the s. 8 breaches I have found. Thus, as I have indicated above, just as obviously the police still would have gotten the telephone records counsel argues should be excluded.

[216] Second, although Ms. Gadhia argues that, quite independently of Charter compliance, the telephone records should be excluded because they were seized pursuant to an order obtained by relying on knowledge acquired from a statement the Crown subsequently failed to prove voluntary, there is, in my view, no proper basis to do so.

[217] Indeed, it is interesting to note that for many years, notwithstanding the Crown’s failure to prove an accused’s statement voluntary, not only was evidence discovered through information revealed in the statement admissible (R. v. Wray, [1971] S.C.R. 272), the Crown was also entitled to adduce those portions of the statement itself that were confirmed to be true by facts extraneous to the statement: R. v. St. Lawrence (1949), 93 C.C.C. 376 (Ont. H.C.J.). St. Lawrence was later expressly approved by the Supreme Court of Canada in Wray. The rule in St. Lawrence has, of course, been modified by R. v. Sweeney (2000), 50 O.R. (3d) 321 (C.A.), to make it Charter compliant, but Sweeney concerns itself only with the admissibility of the statement, not derivative evidence.

[218] I recognize, of course, that the court in Sweeney went on to discuss, in a more general way, the gradual post-Charter demise of the rule in Wray.[^27] At paragraph 43, Rosenberg J.A. refers to R. v. Seaboyer (1991), 66 C.C.C. (3d) 321 (S.C.C.) where, at pp. 390-91, McLachlin J., as she then was, held that the discretion to exclude relevant prosecution evidence depended only on the probative effect of the evidence measured against its prejudice. In the next paragraph, citing R. v. White (1999), 135 C.C.C. (3d) 257 (S.C.C.), at pp. 290-92, Rosenberg J.A. recognizes the power of a trial court to exclude evidence under s. 24(1) of the Charter even without “constitutional infirmity in obtaining the evidence if its admission at trial would violate s. 7 of the Charter”. And, at paragraph 45, citing R. v. Harrer (1995), 101 C.C.C. (3d) 193 (S.C.C.), he refers to the recognition of a common law power to exclude evidence the admission of which would render the trial unfair, even though it was not obtained by a Charter breach.

[219] Applying those principles to this case, the evidence of the telephone records is (i) probative of contact between the two accused at material times, (ii) potentially demonstrates, albeit in a roughhewn way, that Williams was in close proximity to the crime scene shortly after the shooting, and (iii) includes several text messages that are, arguably at least, highly inculpatory. In short, the records are highly probative. While the evidence is potentially very harmful to the accused, it is not prejudicial: R. v. (B.) (L.) (1997), 35 O.R. (3d) 35 (C.A.). I see no possibility for misuse of this evidence by the jury.

[220] Turning to s. 7 of the Charter, insofar as I have made no positive finding of misconduct on the part of any officer in connection with obtaining the statement, but, rather, excluded it only for want of proof, there is nothing about the taking of the statement that suggests to me a breach of the accused’s right to silence. On that point, I reiterate my earlier observation that merely failing to prove voluntariness does not amount to proof of a breach of s. 7.

[221] Lastly, I see nothing, including the breaches of ss. 8 and 10(b) of the Charter, that would make the admission of this evidence unfair.

[222] In summary, then, there is no reason to exclude the telephone records simply because the police first learned the accused’s telephone number in the course of what I have ruled was an involuntary statement.

[223] Third, even if I am wrong in holding that the records are not inadmissible by reason of the police learning the number from the accused in an involuntary statement, the telephone number, as I have discussed above, would inevitably have been discovered from examination of the device itself, which was lawfully seized in the search incident to arrest.

The Witness: Ashley Bryan

[224] The police came to discover the existence of the witness, Ashley Bryan, from the telephone records. Given my finding respecting the records, there is nothing to add respecting Ms. Bryan, other than to say that there is nothing unfair about permitting the Crown to call her as a witness.

Summary

[225] For the foregoing reasons, I conclude that the impact of the breaches I have found on the accused’s Charter-protected interests was at the time of the gathering of the impugned evidence, and remains for trial purposes, effectively nil.

Society's Interest in an Adjudication on the Merits

[226] To begin, in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 36, McLachlin C.J. stated:

The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

[227] On the one hand, the accused is charged with second degree murder. While, obviously, all murders are serious, the facts underpinning this murder are particularly egregious because the incident is yet another example of the brazen and wanton gun violence that plagues this city: R. v. Danvers (2005), 201 O.A.C. 138 (C.A), at paras. 77-78. To say, therefore, that society has a compelling interest in an adjudication of this case on its merits is to state the self-evident.

[228] On the other hand, in a case involving Charter breaches, I must consider the effect of the admission of the evidence on the long term reputation of the administration of justice.

[229] In Chaif-Gust, despite what the trial judge considered to be “serious and flagrant” breaches of both ss. 10(a) and 10(b), in light of:

(i) the impact of those breaches on the appellant being minimal;

(ii) there being no other breaches;

(iii) the evidence sought to be excluded being both reliable and fundamentally important to the Crown’s case; and

(iv) a strong societal interest in the adjudication of the case on the merits;

she held that the admission of the evidence would not bring the administration of justice into disrepute. The Court of Appeal endorsed that finding (at paras. 72-73).

[230] In this case, the breaches I have found are not serious. More importantly, as I have indicated, in my opinion the breaches had no impact on the manner in which the accused conducted himself. Further, while not, perhaps, “fundamental”, as in Chaif-Gust, the evidence of the telephone records the applicant seeks to exclude is both reliable and important to the Crown’s case.

[231] I am alive to the notion that the courts must disassociate themselves from certain conduct on the part of the authorities in order to maintain the integrity of the administration of justice, and that, as Durno J. stated in R. v. Bacchus, 2012 ONSC 5082, [2012] O.J. No. 5902, at paragraph 88, “ignorance of Charter standards must not be rewarded or encouraged.” However, Durno J. also said, citing Grant, “Evidence that the Charter infringing conduct was part of a pattern of abuse will also tend to support exclusion.” The ignorance displayed in this case is concerning, but there is no evidence suggesting that it is part of what the Supreme Court referred to as “a pattern of abuse”.

RESULT

[232] In the result, notwithstanding the concerns mentioned above, in light of (i) the police conduct being unintentional, (ii) the impact on the Charter-protected interests of the accused being effectively nil, and (iii) the compelling public interest in seeing this case decided on its merits, I am not satisfied on a balance of probabilities that the evidence should be excluded. Indeed, I am satisfied that the administration of justice would be put into disrepute not by the inclusion, but, rather, by the exclusion of the impugned evidence.

Clark J.

Released: March 7, 2013

[^1]: A co-accused, Chael Mills, stands charged on the same indictment with first degree murder in relation to the same shooting. Counsel for Mills, Mr. Rodocker, acknowledged that the outcomes of the within applications do not affect the Crown’s case against Mills. Accordingly, he took no part in them.

[^2]: In support of Applications #1 and #2, the Crown put before the court an extensive application record. That record was supplemented by the viva voce evidence of numerous officers involved in the apprehension and arrest of the accused on May 4, 2010. On Application #6, further viva voce evidence was called. Counsel for both sides were content to have the evidence from Applications #1 and #2 apply to Application #6.

[^3]: Earlsdale Avenue runs west off Winona Drive just north of the location of the shooting.

[^4]: A distance of some two to three feet, according to the officer.

[^5]: Adamson’s recitation of the right to counsel to the accused can be heard on the recording from the on-board camera, now Exhibit 6(a) on this application; a transcript of the audio portion of the recording is now Exhibit 6(b).

[^6]: A video recording of the booking procedure is Exhibit 7(a) on this application; a transcript of the audio portion of the recording is Exhibit 7(b).

[^7]: In light of the fact that the accused’s hands were never protected, I fail to see how simply having his hands cuffed behind him would have assisted the police in preserving any GSR.

[^8]: Handy had the accused put on certain garments that had already been seized in order to replicate the manner in which the accused had been dressed when first apprehended. He then had the accused take off one garment at a time, photographing the accused in sequential stages of undress.

[^9]: The video recording of the interview is now Exhibit 9(a) on this application; the transcript of the interview is now Exhibit 9(b).

[^10]: The booking was video recorded and is now Exhibit 10 on this application.

[^11]: Looked at in a different way, had Adamson not given the accused the warning he did, and had the accused actually attempted to flee, causing Adamson to employ the dog, then, in my view, Adamson could have been fairly criticised for not having warned the accused, when such a warning might have persuaded the accused not to flee, thereby avoiding entirely the necessity of using the dog.

[^12]: Transcript of May 4, 2010, Interview, at p. 114.

[^13]: Such as shivering, rubbing one’s hands together or clasping one’s arms about one’s body.

[^14]: See pp. 31-37 of the transcript of the May 4, 2010, interview.

[^15]: The defence argued that there was nothing unusual or suspicious about the applicant, who did not match the suspect description dispatched over the police computer in the following respects: the accused was 18 years of age, wearing a black sweatshirt and was bareheaded while the suspect was described as in his twenties and wearing a jacket and a black toque.

[^16]: Applicant’s Factum, at para. 89.

[^17]: Concerning Adamson taking possession of the accused’s cellular telephone and the business card out of the accused’s trousers.

[^18]: Adamson indicated that he was concerned that with his pants in the position they were, the accused might trip himself and fall.

[^19]: Applicant’s Factum, at para. 98.

[^20]: The question concerning which hand the accused used to write.

[^21]: Applicant’s Factum, at para. 117.

[^22]: Where two propositions, “A” and “B”, are mutually exclusive, to prove “A” just is to disprove “B” and vice versa. On the other hand, from the mere fact that one fails to prove “A”, it does not follow that “B” is established.

[^23]: The accused actually states that he does not wish to answer questions “on behalf of counsel”, but it is clear that he means on the advice of counsel.

[^24]: At page 31 of a 111 page transcript, in response to a question asked by Det. Vruna, the accused gives what is, arguably at least, a nonverbal acknowledgment that he has no children. Accordingly, when I gave my ruling on these applications on January 10, I discussed with counsel whether it would be preferable to simply have the accused admit that fact as opposed to proving it by adducing the first one third of the video recorded statement. If the defence is willing to make that admission, it seems to me that the probative value of adducing the statement would be vastly reduced.

[^25]: R.S.O. 1990, c. T.21.

[^26]: See R. v. Millinchuk, 2012 MBQB 161, [2012] M.J. No. 246, at paras. 63-67, where evidence gathered shortly after a s. 10(b) breach was not excluded for lack of a causal connection between the breach and the obtaining of the evidence.

[^27]: In Wray, the Supreme Court held that a trial judge had discretion to exclude relevant evidence only where the evidence was gravely prejudicial and of trifling probative value.