ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-40000749-000

DATE: 20130923

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant/Respondent

– and –

TEVON THOMPSON

Respondent/Applicant

L. Schwalm, for the Applicant/Respondent

H. Saini, for the Respondent/Applicant

HEARD: September 16,17,18 and 19, 2013

L. A. PATTILLO J. (ORally)

Introduction

[1] Tevon Thompson is charged with six counts of robbery which occurred between July 1 and August 10, 2010 in the City of Toronto.

[2] Following his arrest, the accused provided six separate statements to the police, four of which were not recorded or videotaped and two which were. The Crown brings an application for an order that the accused’s statements were made voluntarily and are admissible in evidence at trial.

[3] At the same time, the accused brings an application seeking a stay of the proceedings pursuant to s. 24(1) of the Charter of Rights and Freedoms (the “Charter”) on the grounds that his ss. 7, 8 and 9 Charter rights were infringed. Alternatively, the accused submits that the statements should be excluded from the evidence at trial.

[4] The applications were heard by me together in a voir dire.

Facts

[5] Between July 1 and 30, 2010, five robberies of fast food delivery persons occurred within a small geographical area located in the south-west corner of Jane and Sheppard. The robberies each occurred at night and involved between three and six or seven assailants, who were described as young black males between the ages of 18 and 20. In each case, the delivery person was attacked after he got out of his vehicle to deliver the food. In two of the robberies, one of the assailants had his hand in his pocket and threatened to shoot the delivery person if he did not co-operate.

[6] The robberies were investigated by the Toronto Police Service and specifically the Major Crime Unit (“MCU”) at 31 Division. Detective Constable Paul Dominey who was in charge of the MCU at 31 Division oversaw the investigation and was familiar with it. The robberies were a concern, not only to the police but also to the local business owners who were affected. With the assistance of production orders, the police determined that the two phones used to place the orders in four of the robberies were registered to owners who resided at 17 Flax Garden Way and 235 Gosford Blvd., apartment 1106. Both addresses were in close proximity to the robberies and became places of interest in the investigation.

[7] Shortly before midnight on August 10, 2010, Detective Dominey and two other officers were in a police car investigating another case. At 11:58 pm, they heard over the police radio that a pizza delivery person had been robbed approximately 10 minutes earlier while delivering a pizza at 46 Wheelwright Crescent. The assailants jumped the driver as he exited his vehicle and took his cell phone, cash and the pizza. They were described as four black males between the ages of 18 and 20 wearing dark jeans and T shirts with handkerchiefs covering their faces. Detective Dominey was aware this was the third fast food robbery that had occurred at 46 Wheelwright.

[8] As there were already officers at the scene of the robbery, Detective Dominey proceeded directly to 17 Flax Garden Way, which is a townhouse less than two blocks from 46 Wheelwright. They arrived at 12:15 am. Two other officers were already there. The lights were on in the house and they proceeded to exit their vehicle and observe the house from the rear. There were people moving inside and they could hear voices. At 12:28 am, three black males exited the house and rode away on bicycles past the officers. They were wearing dark clothing and appeared to be between the ages of 18 and 20. One was clutching his side. Because of the threats of the use of a firearm in two of the earlier robberies, Detective Dominey believed he may be concealing a firearm.

[9] On Detective Dominey’s orders, the three males were stopped by the police for questioning in front of 235 Gosford, an apartment building only a few minutes away. Minutes later, Detective Dominey arrived and had a conversation with them. One lived at 17 Flax Garden Way. The young man Detective Dominey saw holding his side on the bike lived at 235 Gosford, apartment 1106. It turned out he was holding onto a cell phone which the officers learned, after checking the phone number, was used in the robbery on July 23 at 46 Wheelwright. Based on the information he had, Detective Dominey arrested the three men for robbery. Because he was concerned that news of the arrests would get back to 17 Flax Garden Way resulting in the possible destruction of evidence there, the police immediately returned to 17 Flax Garden Way in order to secure the house until a search warrant could be obtained.

[10] Shortly after 12:42 am on August 11, 2010, Detective Dominey knocked on the door of 17 Flax Garden Way. The door was opened by a young male, later identified as the accused, wearing only a towel. Detective Dominey asked for the mother of the young man who had just been arrested and who said he lived there. The accused said she was not home. He asked the accused if he lived there and responded he was just visiting. Detective Dominey then asked if anyone who lived there was home? The accused said he didn’t know and started to proceed to close the door. Detective Dominey stopped him and advised he was seizing the residence until a search warrant could be obtained. The police then entered the home.

[11] In addition to the accused, there were two other people in 17 Flax Garden Way when the police entered, a male, age 18 and a young boy, age 12, both of whom lived at 17 Flax Garden. The accused, who was 18, identified himself and indicated he lived at 235 Gosford, apartment 1106. The three were seated on a couch in the living room and Detective Dominey advised them he was investigating a robbery and seeking a search warrant. He advised them not to say anything about it at that point and that he would arrange for them to speak with legal counsel. Detective Dominey permitted the 12 year old to call his mother on a cell phone which he had with him.

[12] Shortly thereafter, Detective Dominey learned that the cell phone the 12 year old used to call his mother was the phone that was used in the robbery earlier that evening. Further, the cell phone number of the other 18 year old in the house was the number used in three earlier robberies. In addition, when he entered the living room, Detective Dominey noticed on another couch a pile of black clothing, a number of black baseball caps, sun glasses and a blue bandana. While he was in the house, Detective Dominey received further information about the robbery that evening including what was taken and that the four suspects were wearing black clothing and black baseball caps and their faces were covered by bandanas. Based on the information he had about the robberies and particularly the cell phones, Detective Dominey concluded that he had reasonable and probable grounds to arrest the three males in the house at 17 Flax Garden Way for the robbery earlier that evening.

[13] At approximately 1:16 am, Police Constable Pawel Lecki, who had arrived at 17 Flax Garden Way at approximately 1 am with his escort that evening PC Juin Pinto, arrested the accused at the direction of Detective Dominey. Officer Pinto arrested the 12 year old male. Officer Lecki asked the accused to stand, advised him of the charge and asked if he understood to which he replied yes. He then told him that he could speak with duty counsel and took him outside to await transport to the police station. The accused was wearing a dark T shirt and shorts. Once outside, Officer Lecki formally read the accused his rights to a lawyer and the cautions from the back of his notebook. He also conducted a quick “patdown” search of the accused. At some point after that, the accused said to Officer Lecki: “I swear sir. We didn’t do anything. We’re good guys.”

[14] Shortly thereafter, Officers Lecki and Pinto were advised no other vehicle would be coming to transport the accused and the other male in their custody to the station. As a result, they decided to transport them using their own police car. They put the accused and the other male in the back seat of their car and told them not to talk. They left 17 Flax Garden Way at 1:28 am and arrived at 31 Division at 1:32 am. As there were a number of cars ahead of them, the accused was not paraded before the Duty Sargent in the booking room until 1:50 am. Officer Lecki introduced the accused to the Duty Sargent, Staff Sgt. Lamond, explained the charge and recommended a level 3 search. The Duty Sgt. agreed and advised the accused it was a search for weapons because of the nature of the offence he was arrested for.

[15] Officer Lecki then placed the accused in Interview Room A in the MCU at 31 Division. Officers Lecki and Pinto returned to the booking room and paraded the 12 year old, following which he was placed in a separate Interview Room in MCU. At 2:04 am, Officers Lecki and Pinto entered Room A and conducted a level three search of the accused. The door was closed. The search was completed at 2:07 am and the officers left the room. They remained in the MCU doing paperwork until their shift ended at 3:00 am. They had no other contact with the accused.

[16] After the accused and the other youths were arrested, Detective Dominey and another officer searched the townhouse complex in the area of 17 Flax Garden Way during which they located two old wet pizza delivery bags under the stair to the common garage and an empty pizza box matching the description of the one stolen earlier that evening on top of a large recycling bin. Detective Dominey left 17 Flax Garden Way at approximately 2:16 am and returned to his office in the MCU at 31 Division. The six individuals who had been arrested for robbery were in interview rooms in the MCU and the Criminal Investigation Bureau at 31 Division. He was informed that the accused was in Room A in the MCU but did not speak with him. At this point, Detective Dominey had to put aside the robbery investigation in order to oversee another investigation involving the execution of three search warrants that had been previously planned to take place later that morning.

[17] At around 3:15 am, PC Adrian Tait who was involved in the robbery investigation that evening and had arrested one of the males at 235 Gosford, was in the MCU doing paperwork. He had earlier placed calls to duty counsel for, among others, the accused. He answered a phone call for the accused from a Mr. Johnston who he understood to be duty counsel. Officer Tait handed the receiver to the accused in Room A and closed the door with the cord under it. He told the accused to knock on the door when the call was finished. He had no other conversation with the accused.

[18] PC Shawn Gwilliam was also involved in the robbery investigation that evening and arrested the other 18 year old male on the couch at 17 Flax Garden Way at the same time the accused was arrested. He returned to the station at 1:51 and after placing the male in an investigation room, he remained in the station until 4:18 am when he left for other duties. He had no contact with the accused.

[19] Detective Dominey returned to the MCU from his other investigation shortly after 8:00 am on August 11, 2010. At approximately 8:30 am, he entered Room A alone to speak with the accused. He identified himself and told him he had been arrested for the robbery earlier that evening and that he was investigating five other robberies. He read him his rights and the cautions in the back of his notebook. The accused told him he already spoken to a lawyer. Detective Dominey asked the accused if he wanted to speak on video. He appeared not to understand the request at first so Detective Dominey explained what was involved in more detail. The accused agreed to speak. Detective Dominey then asked him what had happened. The accused responded that he didn’t do anything and shook his head. He said maybe it was his brother. Detective Dominey left the room at 8:42 am and immediately arranged for the video room at 31 Division to be set up.

[20] The accused gave a video statement from 8:55 am to 9:26 am on August 11. Present were Detective Dominey and Officer Hewco. Detective Dominey explained the procedure and again read the accused his rights and cautions and confirmed that he had spoken to duty counsel. During the course of the interview, the accused denied being involved in any of the robberies. He said he was in the basement at 17 Flax Garden Way that evening watching TV. He said his brother left the house around 11 pm but came back. At some point he went upstairs and there was a pizza on the table and he ate a piece and then went downstairs to watch TV again. He thought his brother brought the pizza. He then went upstairs to have a shower following which the police arrived. He acknowledged that he and his brother share a cell phone and confirmed the number. When Detective Dominey advised him that on July 23rd, around 11:30 at night, someone used that phone to order a pizza and then rob the delivery man, he said they lent the phone to some guy at Shoreham Plaza who they didn’t know and who asked to borrow their phone. The person ordered a pizza and then returned the phone. At the end of the interview, the accused asked if he could use the bathroom and Detective Dominey said absolutely.

[21] Following the video interview, the accused was returned to Room A in the MCU. Detective Dominey did some paperwork in the MCU and continued his investigation of the robberies. At 11:27 am he completed a video interview with the accused’s brother, who was one of the males arrested at 235 Gosford. He then returned to the MCU.

[22] At approximately 11:42 am, Detective Dominey heard a loud knock on the door of Interview Room A. When he opened the door, the accused was noticeably upset emotionally. He was crying. The accused told him that he wanted to correct his video statement because he had lied. He wanted to erase the first statement and make a new one. Detective Dominey told him that he couldn’t erase the statement but he could do another one if he wanted to correct anything. The accused agreed. Detective Dominey then left the room and arranged to have the video room set up.

[23] The second video interview began at 12:05 pm on April 11 and ended at 12:29 pm. Once again, Detective Dominey and Officer Hewco were present. Detective Dominey summarized why the statement was being taken and reminded the accused of his rights and cautions read earlier. The accused then admitted that he and some of the other males who had been at 17 Fax Garden Way had robbed the pizza man earlier that evening. He said he ordered the pizza using the 12 year olds phone. He initially denied being involved in the other robberies at 46 Wheelwright. He said he didn’t loan his phone to the stranger he had earlier said had asked to borrow it. Rather, he left his phone at 17 Flax Garden Way that night and went out with his sister. He later admitted to also being involved in the robbery at 46 Wheelwright on July 30 involving Chinese food. When Detective Dominey asked him at the end why he had the change of heart, he said that he just wanted to get it “off his chest.”

[24] After the second video statement, the accused was taken back to Room A. Detective Dominey continued with the investigation, including conducting video interviews with two of the other males arrested that evening. At approximately 5:00 pm, he entered Room A alone to talk to the accused. He wanted to talk to him one last time based on the information he had. He believed that the accused was involved in more robberies than he had admitted to. He told him that he wanted to clarify a few things about the robberies. He said the accused was upset and crying. He asked the accused if he was present for all six robberies and the accused answered yes. He named two of the other males and asked if they were present for all six. The accused answered yes. The accused said that one of the males was involved against his will and another only on that night. He said they did it because they were hungry and had no money to buy food. Detective Dominey said that the accused seemed scared and overwhelmed and that he believed him. The entire discussion lasted approximately 15 minutes.

[25] About five minutes after he left Room A, Detective Dominey returned because he was worried about the accused’s emotional state. He stayed in the Room with the accused for 35 minutes during which time they talked about the accused’s involvement in football and his church. When he left, he continued to complete his paperwork in the MCU.

[26] At 6:34 pm, having concluded that the 12 year old was not involved in the robberies, Detective Dominey arranged for him to be released to his parents.

[27] At 10:29 pm, the accused and some of the other males arrested that night left 31 Division to be fingerprinted and housed for the night. They arrived at 32 Division at 2:10 am where they spent the night. They left 32 Division at 7:51 am and were taken to court at 1000 Finch Ave. West. The accused was released on bail that day.

The Issues

[28] The Crown’s application raises the issue of whether all of the statements made by the accused to the police on August 11, 2010, both non-recorded and recorded, were voluntarily given by him.

[29] The accused’s application alleges that the police conduct towards him on August 11, 2010 infringed his rights as provided in ss. 7, 8 and 9 of the Charter. In particular, he submits that the police did not have reasonable and probable grounds to arrest him on August 11, in violation of s.9; the level three search he was subjected to at the police station was a violation of s. 8; and the failure to bring him before a justice within 24 hours of his arrest was a further violation of s. 9. The accused submits that the fair remedy for these breaches is a stay of the charges against him pursuant to s. 24(1) of the Charter or in the alternative that the statements obtained from him should be excluded.

Voluntariness

[30] A statement by an accused to a person in authority will not be admissible at trial if it is made under circumstances that raise a reasonable doubt as to its voluntariness. In order to determine whether a statement is voluntary, all of the relevant circumstances surrounding its making must be considered. The onus is on the Crown to establish voluntariness. R. v. Oickle, [2002] 2 S.C.R. 3, 2000 SCC 38 (S.C.C.).

[31] Although statements which are not video recorded are not inherently suspect generally, that is not the case where an accused is in custody, recording facilities are readily available and the police deliberately set out to interrogate the individual without any thought to making a reliable recording. In such a case, the issue is whether there is a sufficiently reliable record of the statement to enable the Crown to meet its onus. See: Oickle, at para. 46; R. v. Moore-McFarlane (2001), 2001 6363 (ON CA), 56 O.R. (3d) 737, 160 C.C.C. (3d) 493 (C.A.) at para. 65.

[32] After considering all of the circumstances surrounding the statements made by the accused to the Crown on August 11, 2010, I am satisfied that the Crown has met its onus of establishing beyond a reasonable doubt that they were all given voluntarily by the accused except for the last one at 5 pm on August 11.

[33] The first statement was oral and given by the accused to Officer Lecki shortly after he was arrested. In argument, counsel for the accused conceded the statement was voluntary. I agree. It was made after the accused had been advised of his rights to counsel and cautioned that he was not required to say anything. It was provided by the accused in a spontaneous manner without any prompting by Officer Lecki. Further, Officer Lecki recorded it verbatim in his notebook. I am also satisfied from the evidence of Detective Dominey and Officers Lecki and Pinto, which I accept, that in the period from when Detective Dominey first entered 17 Flax Garden Way to when the accused made the statement, there were no threats or inducements made to the accused concerning the statement. The statement was clearly voluntary and is therefore admissible.

[34] The second statement occurs at around 8:30 am when Detective Dominey enters Room A in the MCU at 31 Division by himself to speak to the accused. Detective Dominey said the purpose in speaking to the accused was to see if he would give a statement on video. Their meeting lasted 12 minutes. The accused’s statement is brief and exculpatory. It was also not recorded. Detective Dominey made notes of the discussion after he left the room.

[35] In my view, the Crown has established beyond a reasonable doubt that the statement was voluntary. Although it was not on video, I do not consider it inherently suspect in the circumstances. I accept Detective Dominey’s evidence that the primary purpose of going into the room in the first place was to determine whether the accused would give a statement on video. He was just beginning his interviews with the suspects at that point. Given that six people had been arrested for the robberies, there were potentially a lot of interviews. It made sense to determine willingness to speak before going to the extent of setting up the equipment and moving to the video room. I also note that the accused had been amply given his rights and cautioned (including by Detective Dominey when he entered the room) and had spoken with duty counsel earlier in the morning. Finally, the accused’s statement was exculpatory.

[36] Nor do I find from the evidence that there was any oppression or improper influence exerted on the accused by the police from the time he was transported from 17 Flax Garden Way to when Detective Dominey first entered Room A. Officers Lecki and Pinto accompanied him to the station and at the booking and placed him in Room A alone. They conducted the level three search and then remained in the MCU, which was not a large area, until 3 am. They testified that they never engaged in conversation with the accused and made no threats or promises to him. Officer Tait who facilitated the accused speaking to duty counsel said that other than passing the phone and telling him to knock on the door when done, he did not speak to the accused and made no threats or promises to him. Officer Park was in the MCU between 2:16 am and 4:30 am and had no contact with the accused. During that time, the accused did not indicate he was in distress or need assistance by knocking on the door of Room A. Detective Dominey, who was the officer in charge of the investigation, said that to his knowledge no one spoke to the accused in Room A until he entered at 8:30 am.

[37] The video statement began at 8:55 am; some 23 minutes after Detective Dominey left Room A. Detective Dominey escorted the accused to the video room. The statement lasted 31 minutes. It is clear from viewing it that Detective Dominey and Officer Hewco did not induce or threaten the accused. He answered their questions directly. In all of the circumstances, I am satisfied that the statement was voluntary.

[38] After the statement, the accused was again placed in Room A. The next statement occurred at the instigation of the accused a few hours later when he knocked on the door of Room A and Detective Dominey answered. Again I am satisfied that the accused’s statement as testified to by Detective Dominey was voluntarily given by the accused. Although not on video, I do not consider it suspect given that it was initiated by the accused and was brief. Further, while the accused was noticeably upset and crying when Detective Dominey opened the door, based on the evidence, I do not consider that his emotional state had anything to do with any police oppression or inducement. It was more likely, in my view, because he had time to reflect on his earlier statement in which he implicated his brother in the robbery and exonerated himself. While he had been left alone for in excess of two hours since his video statement, it was not for the purpose of breaking down the accused. Detective Dominey was busy interviewing the other suspects.

[39] The second video statement takes place at 12:05 pm on August 11 and lasts 24 minutes. I am also satisfied from watching it and from considering the circumstances leading up to it that it was voluntarily given by the accused. Again there were no threats or inducements of any kind. The interview was conducted in a very fair and straightforward manner. The accused spoke freely and understood the questions.

[40] The last statement occurred at 5 pm when Detective Dominey went into Room A to again speak with the accused. The purpose was clearly to further the investigation. Detective Dominey candidly admitted that he was tired (he’d been on the job since 4 pm on August 10th) and frustrated that he had not identified which of the suspects were involved in which robbery. He just wanted to complete the investigation. Rather than take the accused back to the video room to have the discussion, he elected to speak to him directly. To make matters worse, the accused was in an emotional state at that time of the discussion. Detective Dominey didn’t record the discussion verbatim but made notes sometime after. In my view, the purpose of the interview coupled with the clear decision not to video the discussion and the lack of accurate record taking makes the statement by the accused suspect. The Crown has failed to meet its heavy onus of establishing that this statement was voluntary.

[41] The accused submits because the Crown cannot account directly for all the time he was in Room A, it cannot meet its onus to establish that any of the statements were voluntary. He relies in support of that submission on R. v. Holmes (2002), 2002 45114 (ON CA), 62 O.R. (3d) 146; 169 C.C.C. (3d) 344 (C.A.). In Holmes, the Court held that in the absence of any evidence of what occurred for the 16 hour period the accused was in custody prior to giving a statement, the Crown failed to establish that the statement was voluntary.

[42] Unlike Holmes, however, there is much evidence in this case of what transpired from the time of the accused’s arrest through to and including his time in Room A. While the evidence does not account for every minute that the accused was in Room A and his contact with every officer, it does not have to be that detailed. In my view, the evidence presented is sufficient to enable me to draw the inference that there was no oppression or undue influence exerted on the accused while he was in police custody. He had very little contact with the police and the contact he did have did not involve any threats, promises or other forms of inducement. Nor, in my view, did the accused’s stay in Room A give rise to the kind of oppressive conditions which may result in false confessions. When he asked to go to the washroom after the first video interview, Detective Dominey readily agreed. He was certainly aware that if he needed anything, he could knock on the door of Room A. Although he was emotionally upset during the latter period of his custody, I attribute that to the circumstances of the charges he was facing rather than the conditions of his custody or any actions by the police. I also note that Detective Dominey took the time to speak with him in order to relieve his emotional state.

Arrest

[43] In order for an arrest to be lawful, the arresting officer must have reasonable and probable grounds for the arrest. The reasonable and probable grounds must be present both subjectively and objectively: R. v. Storey, 1990 125 (SCC), [1990] 1 S.C.R. 241 (S.C.C.) at paras. 16 -17.

[44] Detective Dominey testified that when he ordered the arrest of the accused at 17 Flax Garden Way early on August 11, 2010, for the robbery the evening before, he believed, based on the information he had, that he had reasonable and probable grounds for the arrest. The robbery was the sixth in a series of similar robberies that had occurred over the prior month in the immediate vicinity of Flax Garden Way. They involved anywhere from 3 to 6 suspects aged 18 to 20. Five of the six males at 17 Flax Garden Way (including the three who left on bikes) matched the generic description on the robbers that evening. Detective Dominey said that the paramount fact for him was the connection to the phones used in the robberies, including the robbery that evening. The phones used in the earlier robberies were registered to both 17 Fax Garden Way and 235 Gosford, apartment 1106. The phone used that night belonged to a 12 year old who was at 17 Flax Garden Way with the accused. When the police arrived at 17 Flax Garden Way shortly after the robbery, they observed three young males leave. One of them (the accused’s brother) had one of the phones used in a prior robbery in his possession. There were three other males at 17 Flax Garden Way, one who was 12 and the other two, including the accused, who were 18. The robbers that evening were described as wearing black clothing, black baseball caps and bandanas over their faces. There was black clothing, black baseball caps and a bandana on the couch in the living room at 17 Flax Garden Way.

[45] The accused conceded that Detective Dominey subjectively had reasonable and probable grounds to arrest him. He submitted, however, that such grounds did not exist on an objective basis. I cannot agree. A reasonable person, when considering all of the information that Detective Dominey had that evening about both the earlier robberies and the one that had occurred earlier that evening, would easily conclude, in my view, that there were reasonable and probable grounds for arresting the accused for the robbery that occurred earlier that evening. In my view, the arrest was lawful.

Strip Search

[46] A level three search, more commonly called a strip search, involves the removal of some or all of a person’s clothing to permit a visual inspection of their genitals or undergarments. It is, by its very nature, inherently humiliating and degrading and often a traumatic experience for the person being searched.

[47] Strip searches are prima facie unreasonable. That being said, the Supreme Court of Canada has held that the common law power to search incident to arrest includes, in certain circumstances, the power to strip search: R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, 159 C.C.C. (3d) 449 (S.C.C.). In order for a strip search to be justified as incident to arrest, the arrest must be lawful; the search must be incident to the arrest; and the search itself must be conducted in a reasonable manner: Golden, at paras. 91 to 103.

[48] When the reasonableness of the strip search is challenged, the Crown bears the onus of proving its legality. Where, as in this case, the strip search takes place at the police station, the Crown must establish on a balance of probabilities that reasonable grounds existed for the search and that it was carried out in a reasonable manner: Golden, at para. 105.

[49] I have already concluded that the accused’s arrest for robbery at 17 Flax Garden Way was lawful. There is no issue concerning the ‘pat down’ search that Officer Lecki conducted on the accused following his arrest and before he was placed in the police car to be transported to the station.

[50] Did reasonable grounds exist to justify the strip search which took place at the police station in Room A? At the time he arrested the accused for the robbery earlier that evening, Officer Lecki was aware from the police radio call he heard earlier that it involved violence. Although he conducted a pat down search of the accused prior to putting him in the police car, he concluded given the charge that a level 3 search was required prior to placing him in custody at the police station for safety reasons. As a result, when the accused was paraded at 31 Division by Officer Leckie, he recommended a level three search be conducted on the accused. Staff Sgt. Lamond, the Booking Sgt. at 31 Division agreed and authorized the search.

[51] In Garden, at para. 96, the Supreme Court distinguished between strip searches done immediately incidental to arrest and those related to safety issues in a custodial setting. The Court noted that strip searches in a custodial setting could be justified where the individual is being introduced to the general prison population on the basis of safety.

[52] The accused submits that given he was wearing only a towel when the officers first entered 17 Flax Garden Way and he was wearing a T shirt and shorts when he was taken to the police station, it was reasonable to assume he got dressed at some point in the interim under officer supervision and when he left the house with Officer Lecki he had no weapons on his person. Accordingly, it was unreasonable to conduct a level three search on him at the police station.

[53] Officer Lecki was not aware the accused had been initially dressed only in a towel and got dressed under police supervision. He only saw him clothed on the living room couch and he based his decision to recommend a level three search given the circumstances of the charge and in custody safety issues. As he said, it was his responsibility to ensure that there were no safety issues with the accused’s detention. In my view, based on the circumstances of the charge and custodial safety issues, the decision to conduct a level three search of the accused at the police station was reasonable. The accused was going to be held along with other prisoners in police custody pending bail review and would come into contact with other police officers. Given the charge involved an allegation of violence, a level three search was justified.

[54] Given the nature of the investigation at 17 Flax Garden Way and the number of officers in the house, I do not consider there was any requirement to advise Officer Leckie that the accused had gotten dressed under officer supervision. Even if such information had been conveyed, it may not have eliminated the need for the strip search. As Officer Lecki said, as the arresting officer, he is responsible for ensuring there are no safety issues when the accused is booked into the police station.

[55] Finally, the search which was conducted by the officers was reasonable in my view. It met almost all of the suggested guidelines set out in Golden at para. 101. It was conducted at the police station and was authorized by the booking Sgt. It occurred behind a closed door in Room A in the MCU in the presence of Lecki and Pinto two officers of the same gender. The accused cooperated and there was no force involved. He was asked to remove only one item of clothing at a time which, after inspection, was returned and he put it back on. There was no physical contact. The officers removed a draw string from the accused’s shorts. The search lasted a total of only three minutes.

[56] Accordingly, I find that in the circumstances as I have outlined them, the level three search conducted on the accused was justified. It did not constitute a breach of s. 8 of the Charter.

Section 503 of the Criminal Code

[57] The accused was not brought before a justice following his arrest for a period of approximately 30 hours. The Crown concedes that this is a breach of s. 503(1)(a) of the Criminal Code which requires that a person who is arrested shall be taken before a justice without unreasonable delay and in any event within 24 hours. It also constitutes a breach of the accused`s rights under s. 9 of the Charter. The issue is what is the remedy that should follow under s. 24(1) of the Charter?

[58] The accused submits that the proper remedy for the Charter breach is a stay of the proceedings. In the alternative, he seeks exclusion of his statements to the police. The Crown submits that a stay is not appropriate nor should the statements be excluded. Rather the remedy should be in the form of costs or sentencing considerations at the conclusion of the trial.

[59] The principles governing the granting of a stay in criminal cases as outlined by the Supreme Court of Canada were set out by the Court of Appeal in R. v. Zarinchang, 2010 ONCA 286, 254 C.C.C. (3d) 133 (C.A.) at para. 57:

57 From the above cases in the Supreme Court, the following principles emerge:

(1) There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual's trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.

(2) In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied:

(i) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and

(ii) no other remedy is reasonably capable of removing that prejudice.

(3) In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider - the balancing of the interests in granting a stay against society's interest in having a trial on the merits.

[60] A stay should only be granted in the clearest of cases: R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R 297 (S.C.C.) at paras. 53 to 57. In my view a stay is not appropriate in this case.

[61] First, I do not consider that the delay has caused any prejudice to the accused’s right to a fair trial. The statements which I have found are voluntary were all made well before the time when it became impossible to bring the accused before a justice within the 24 hour period. The one statement which is arguably outside this period is the last one which I have held should not be admitted because the Crown has failed to meet its onus. Apart from the statements, the accused has raised no other issue of prejudice.

[62] Nor, in my view, is the residual category referred to in Zarinchang above, applicable. I do not consider the state conduct in failing to bring the accused before a justice within 24 hours of his arrest to have contravened fundamental notions of justice. The delay in bringing the accused before a justice within the 24 hour period occurred in this case because of the unique and unusual circumstances Detective Dominey and his fellow officers found themselves in that day. They had previously scheduled the execution of three search warrants in another investigation for the early morning of August 11, 2010, before the events of August 10 and 11 unfolded in this case. Detective Dominey, who had been with the Toronto Police for 14 years before that date, said he had never seen such a busy night at 31 Division, before or since. The police simply didn’t have the resources to handle the investigations which took place that night. While those events do not excuse the delay in bringing the accused before a justice within 24 hours of his arrest, they do explain it. Most importantly, they indicate in my view and I so find that the delay was not because of a conscious effort on the part of Detective Dominey to obtain a confession from the accused. While there is no question the delay was in part brought about by the continuing investigation into the robberies that was primarily because of the number of suspects in custody. The accused had spoken to the police well within the time necessary to transport him to court within the 24 hours. In my view, Detective Dominey was simply attempting to be careful and thorough before charging the accused and the others who were arrested with the robberies. This is confirmed, in part, by the fact that he ended up releasing the 12 year old later on in the evening of August 11, 2010

[63] For the above reasons, therefore, I decline to grant a stay. The issue remains, what, if any remedy should apply to the Charter breach in this case? The accused seeks exclusion of all the statements he gave to the police.

[64] The issue of remedy is subsumed somewhat by the determination of the Crown’s application concerning the statements. Notwithstanding that I have held that the last statement given by the accused to Detective Dominey at 5 pm on April 11, 2010 is not admissible at trial, in my view, the appropriate remedy for the s.9 Charter breach is to exclude that statement. See: R. v. Mangat, 2006 20227 (ON CA), [2006] O.J. No. 2418, 209 C.C.C. (3d) 225 (Ont. C.A.).

[65] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, 245 C.C.C. (3d) 1 (S.C.C.), the Court set out the criteria relevant to determining when the admission of evidence obtained by a Charter breach “would bring the administration of justice into disrepute” as set out in s. 24(2) of the Charter. They are: seriousness of the Charter-infringing conduct; impact on the Charter protected interests of the accused; and society’s interest in adjudication on the merits.

[66] I have already discussed the seriousness of the police conduct here. It is serious but not systemic in my view. Importantly, there was no deliberate attempt to breach the accused’s rights in order to disadvantage him. The statements were not obtained as a result of the breach. On the other hand, there is no question the right to be brought before a justice within 24 hours is a very important right to the accused. The breach is serious in respect of the accused’s interests. Finally, there can be no question that society has a very strong interest in a determination of this case on the merits.

[67] Even if I was of the view, which I am not, that the statements given by the accused to the police prior to 5pm on August 11, 2010 were obtained as a result of the Charter breach, on the above analysis, I would not exclude the statements under s. 24(2) of the Charter.

Conclusion

[68] In summary therefore, for the reasons given, the Crown’s application is allowed in part. All of the statements made by the accused to the police on August 11, 2010, except for the last one given orally to Detective Dominey at 5 pm, are held to be voluntary and admissible at trial.

[69] The accused’s application is also allowed in part. The police’s breach of s. 503 of the Criminal Code constituted a breach of his s. 9 Charter rights. The accused oral statement given at 5 pm on August 11, 2010 will be excluded from evidence at trial. The balance of the accused’s application is dismissed.

L. A. Pattillo

Released: September 23, 2013

COURT FILE NO.: 11-40000749-000

DATE: 20130923

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Applicant/Respondent

– and –

TEVON THOMPSON

Respondent/Applicant

REASONS FOR JUDGMENT

L. A. PATTILLO J.

Released: September 23, 2013