ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 328/12
DATE: 20130313
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
NEDRICK THOMAS
Applicant
Ken Lockhart, for the Crown
Ehsan Ghebrai, for the Applicant
HEARD: March 4 and 5, 2013
b. p. o’marra j
rulings re: statements made to police in georgia, u.s.a.
overview
[1] On July 29, 2009 Mr. Thomas was arrested in Alpharetta, Georgia based on a Canadian warrant. The charges included Attempt Murder and Use of a Firearm While Committing an Indictable Offence. He was questioned immediately after his arrest and more extensively at the police station later.
[2] The Defence opposes the admission of all utterances made to the Georgia police based on voluntariness, Charter and American legal grounds.
facts
[3] Three members of the Alpharetta Police Department testified on these applications by video from Georgia. The Defence did not call any evidence.
[4] On July 28, 2009 in the early afternoon, Wendy Green came into the Alpharetta Police Department to report that her husband had lost his passport. She said he had lost it during a recent move to their address at 2010 Winthrope Commons, Alpharetta, Georgia. She identified her husband as Nedrick Anthony Thomas with a date of birth of November 14, 1968.
[5] The officer who dealt with Ms. Green ran a check on the name of Mr. Thomas and received information that he was wanted by the RCMP in Canada in regard to a homicide investigation.
[6] Ms. Green was not told about the outstanding warrant for her husband. In an attempt to identify whether she was referring to the same Nedrick Anthony Thomas as on the warrant the police covertly followed her from the police station to her home on Winthrope Commons.
[7] The police set up surveillance on the house for several hours. They did not see any adult males fitting the description of Mr. Thomas. The police had information that the person believed to be Nedrick Thomas owned and operated a silver Mercedes SUV. The vehicle was not observed during this initial surveillance.
[8] Further information received from Toronto police indicated that the charges were Attempt Murder and Use of a Firearm in an Indictable Offence. Those offences had occurred in 1996. The Georgia police were supplied with a copy of the warrant as well as a photo of Mr. Thomas dated in 1995.
[9] In the early morning of July 29, 2009 police were again conducting surveillance on the Winthrope Commons residence. They observed a silver Mercedes SUV parked in the driveway. At approximately 9 a.m. an adult male who was later identified as Mr. Thomas was observed to leave the house and get into the silver SUV along with a young child as a passenger. Shortly after the vehicle drove away it was stopped by Officers Shoffeitt and Smith.
[10] The police approached the vehicle with their firearms drawn. Officer Smith walked towards the Thomas vehicle somewhat behind Officer Shoffeitt as a backup. Officer Smith had no direct dealings with Mr. Thomas and was not in a position to overhear what was discussed or said by either Officer Shoffeitt or Mr. Thomas.
[11] Officer Shoffeitt recognized the driver as Nedrick Anthony Thomas based on the photo supplied by Toronto police. Mr. Thomas was arrested. Officer Shoffeitt asked Mr. Thomas his name and date of birth. Mr. Thomas supplied the name of “Anthoney” Johnson with a date of birth of January 16, 1969. At some point during the arrest, an expired Florida Identification Card was found in Mr. Thomas’ wallet. That card had a photo of Mr. Thomas and showed the name of “Anthoney” Johnson with a date of birth of January 16, 1969. Officer Shoffeitt specifically recalled the unusual spelling of the first name.
[12] Officer Shoffeitt had some further brief conversation with Mr. Thomas at the scene which the Crown is not tendering at trial. Before Mr. Thomas was transported from the scene Officer Bochniak attended and had some discussion with Mr. Thomas which also is not tendered by the Crown.
[13] Mr. Thomas was handcuffed behind his back and placed in a marked police cruiser for transport to the police station. The officer who operated that vehicle was Officer Southwell. He was not called to testify on these applications. Officer Shoffeitt did not advise Mr. Thomas of his Miranda rights nor did he advise him of his right to remain silent.
[14] Officer Bochniak arrived at the scene of the arrest approximately 15 minutes after it occurred. He observed Mr. Thomas in the back of the marked cruiser with his hands cuffed to the rear. He spoke briefly to Mr. Thomas. He did not issue the Miranda warning to Mr. Thomas.
[15] Officer Bochniak entered a cell where Mr. Thomas was waiting and conducted an interview. He indicated that Mr. Thomas would have been dealt with by “jailers” when he first arrived at the station. Officer Bochniak could not say who the jailers were or what they may have said to Mr. Thomas. In his experience “jailers” had not spoken to any suspects that he had apprehended other than for clerical information. In any event, there was simply no evidence as to the identity of any of the jailers or what contact, if any, they had with Mr. Thomas before Officer Bochniak arrived.
[16] Officer Bochniak read the Miranda rights to Mr. Thomas. Mr. Thomas initially agreed to speak with him. Officer Bochniak told him that he knew that he was in fact Nedrick Anthony Thomas but Mr. Thomas continued to say he was Anthoney Johnson. Mr. Thomas said that Wendy Green was his cousin’s girlfriend and that the children were those of Wendy Green’s husband. Mr. Thomas then changed his story to say that his cousin was Wendy Green’s husband. He could not identity her husband by name. Officer Bochniak told Mr. Thomas that Wendy Green had identified him as her husband. Mr. Thomas said that he did not know why she would do this but she must be lying. Officer Bochniak told him that his children had identified him as their father but he denied that. Mr. Thomas then asked to speak with a lawyer and questioning ceased.
[17] Officer Bochniak indicated that the cell did not have recording equipment but he could have brought equipment in for that purpose. It was his practice to record all such interviews and in fact he may have recorded this one. He could not recall if that happened. He testified that the interview of Mr. Thomas at the station could have been as short as five minutes and as long as 30 minutes. There may well have been some repetition but he certainly did not make verbatim notes of what was discussed. His notes, such as they are, were put into a Case Supplemental Report that he later typed after input from other officers involved in the investigation. Officer Bochniak believes that he was the only officer in the room with Mr. Thomas.
[18] Officer Bochniak indicated that his sole intent and purpose in questioning Mr. Thomas after the arrest was to confirm that he was the man who was cited in the arrest warrant from Canada. He had no interest in questioning Mr. Thomas about the allegations regarding the offences that had occurred in Canada in 1996.
[19] Officer Bochniak had no specific note as to whether Mr. Thomas understood his rights under the Miranda decision and his right to remain silent.
analysis
[20] Crown and Defence agreed to proceed on a blended voir dire with the evidence to apply on all applications. The onus of proof in regard to voluntariness is on the Crown. The Crown must prove that the statements were voluntary beyond a reasonable doubt. The onus of proof in regard to alleged violations of the Charter rests on the Defence.
[21] The record of events at the police station is inadequate and incomplete. Officer Southwell, who transported Mr. Thomas to the police station was not called and there is no evidence as to what, if any, conversation took place on route to the station. Office Bochniak referred to “jailers” who would have dealt with Mr. Thomas before the interview at the station. There is no evidence as to who those jailers were or how many or what, if any, contact they had with Mr. Thomas. Officer Bochniak was in the cell with Mr. Thomas for as little as five and as much as 30 minutes. He indicated that it is his practice to record such interviews after the Miranda warning. He was unsure as to whether or not he had recorded this conversation but he certainly did not have any present recollection of that nor any record of it.
[22] There is no specific evidence of promises, threats or inducement. However, the dealings between Mr. Thomas and the local police from the time he was arrested until he is interviewed at the station have not been adequately accounted for. The conversation at the police station has not been proven voluntary. It is unnecessary to deal with any Charter or American law implications in regard to that conversation.
[23] The only utterances that the Crown seeks to admit at the time of arrest relate to Mr. Thomas providing a false name and date of birth. Mr. Thomas was arrested at gun-point, handcuffed and placed in a cruiser before that question was put to him.
[24] The Defence concedes that the detention and arrest of Mr. Thomas was lawful. Therefore the search incidental to arrest that produced the Identification Card in the name of Anthoney Johnson would be admissible. The officers who approached Mr. Thomas were clearly acting on the basis of a warrant issued out of Canada. It was appropriate and necessary that they at least ask Mr. Thomas to identify himself to make sure they were dealing with the right person. If the officers had failed to at least ask that question they could have been criticized for not acting in a diligent manner. The false name and incorrect date of birth would have been inevitably retrieved by the false identification document carried by Mr. Thomas.
[25] Counsel for the Defence object to the admission of the false name and date of birth based on voluntariness grounds as well as Charter and American law principles. The question by the police as to his name and date of birth was not an interrogation or investigative question. It was not necessary for the police to give Mr. Thomas a Miranda warning or advise him of his right to remain silent before asking for his name and date of birth in the circumstances.
application of the charter to the conduct of police outside of canada
[26] The Charter does not apply to foreign officials acting outside of Canada.
Charter s. 32(1).
R. v. Terry (1996) 1996 199 (SCC), 106 CCC (3d) 508 (S.C.C.) at paras. 13-20, 27.
R. v. Cook (1998) 1998 802 (SCC), 128 CCC (3d) 1 (S.C.C.) at paras. 26-44, 89.
trial fairness
[27] Evidence obtained by foreign officials in a foreign country may be excluded if its admission would render a trial unfair.
R. v. Hape (2007) 2007 SCC 26, 220 CCC (3d) 161 (S.C.C.) at para. 113.
[28] The party seeking to exclude foreign evidence bears the ultimate burden of demonstrating on a balance of probabilities that its admission at trial would render the trial unfair.
R. v. Rogers 2011 ONSC 5007 (O.S.C) at para. 128.
[29] A fair trial does not mean the most favourable trial possible from the accused’s point of view. A fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial is one which satisfies the public interest in getting the truth while preserving basic procedural fairness to the accused.
R. v. Harrer (1995), 1995 70 (SCC), 101 CCC (3d) 193 (S.C.C.) at paras. 15 and 45.
[30] The American police in this case were executing a warrant for an alleged attempt murder involving a firearm. That explains and justifies the gun point arrest. They did not ask any investigative questions related to the allegations in Canada. The sole questions at the arrest scene related to identity. The police were properly and fairly seeking to confirm that the man they arrested was the man named in the Canadian warrant.
[31] The search incident to the lawful arrest produced the Florida Identity Card with a false name and date of birth. That evidence is clearly admissible. Evidence of the words spoken by Mr. Thomas with that same information does not operate unfairly against him at trial.
result
[32] Evidence that Mr. Thomas provided a false name and date of birth to Officer Shoffeitt is admissible.
B. P. O’Marra J.
Released: March 15, 2013
COURT FILE NO.: 328/12
DATE: 20130313
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
NEDRICK THOMAS
Applicant
RULINGS RE: STATEMENTS MADE TO POLICE IN GEORGIA, U.S.A.
B. P. O’Marra J.
Released: March 13, 2013