CITATION

R. v. Tyrell, 2013 ONSC 6519

COURT FILE NO.: CR-13-50000518-0000

DATE: 20130730

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

LEVAR TYRELL

Respondent

R. Krueger, for the Crown

J. Erickson, for the Applicant

HEARD: July 25 and 26, 2013

Thorburn J.

Application to Exclude Evidence on the Basis that the Statements Made were Involuntary

I. Relief Sought

[1] On May 4, 2010, police executed a search warrant at 2005 Eglinton Avenue West, apartment 309. They found two loaded prohibited firearms in the apartment and arrested Tyrell and Grizzle on scene and charged them, inter alia, with possession of the two loaded firearms.

[2] The Crown seeks to introduce statements made by Tyrell to members of the Niagara Regional Police Services and the Toronto Police Service that:

(a) the two children who were in the apartment at the time the search warrant was executed were Tyrell and MacPhee’s children, and

(b) Omar Grizzle was a family member who had been staying there for the last little while.

II. The Issue

[3] The issue to be decided is whether the answers given to police by Tyrell in response to questions posed by police, were voluntary.

[4] It is agreed that the Crown has the onus to prove voluntariness of the statement beyond a reasonable doubt.

III. The Law

[5] A person who has been detained has the right to remain silent and is not obliged to give information to the police. The purpose of the right to silence is to ensure that:

(a) evidence is reliable;

(b) the person giving evidence does so of his own free will;

(c) law enforcement officers obey the law; and

(d) the criminal justice system is and is seen to be fair. (R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38 at paras 69 and 70.)

[6] The right to silence includes the right of a detained person to make a meaningful choice as to whether or not to speak to state authorities. (R. v. Singh, 2007 SCC 48, [2007] 3 SCR 405 at para. 35 and R. v. Oickle, supra at paras. 24-26.) The reason for this rule is that an accused should be permitted not to incriminate himself unless he wants to.

[7] A statement will therefore not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. (R. v. Oickle supra at para. 68 and Singh supra at para. 38.)

[8] In order to determine whether a decision to speak to authorities was voluntary, the court must consider whether,

(a) the statement was made in circumstances free from oppression or inducements, and

(b) the person had an “operating mind”. (R. v. Hamadeh, 2011 ONSC 1241, [2011] O.J. No. 819 at para. 32 and R. v. Hebert, 1990 SCC, [1990] S.C.J. No. 64 (S.C.C.) at p. 166.)

[9] An individual has an operating mind as long as he knows what he is saying, that he is communicating with police officers, and what is at stake if he chooses to speak to police. (Oickle supra at para 63 citing R. v. Whittle, 1994 SCC, [1994] 2 S.C.R. 914 at p. 936.)

[10] In R. v. MacCharles, [1991] O.J. No. 2497 (Gen. Div.) the court held that although police had no obligation to advise the accused of his right to counsel before asking him questions about who the occupants of the house were and whether there were weapons in the house, the statement made by the accused was not voluntary because it was made while the accused was lying face down on the ground, in handcuffs, in the presence of a police gun.

[11] The Courts have held that a statement may be involuntary even if there is no actual violence or direct threat of violence. In Ward v. Her Majesty The Queen, 1979 SCC, [1979] 2 SCR 30 and Horvath v. The Queen, 1979 SCC, [1979] 2 S.C.R. 376 held that a statement was not voluntary where the person was in a state of shock (Ward) or “complete emotional disintegration” (Horvath). Similarly in Hobbins v. The Queen, 1982 SCC, [1982] 1 S.C.R.553 at pp. 556-557, Laskin C.J. noted that in determining the voluntariness of a confession, courts should be alert to the coercive effect of an “atmosphere of oppression” even though there was “no inducement held out of hope of advantage or fear of prejudice” and no threats of violence or actual violence.

[12] The absence of a warning is an important factor but may not be determinative of the admissibility of a statement made by an accused to a person in authority. (R .v. Singh at para. 31 and Boudreau v. The King, 1949 SCC, [1949] S.C.R. 262, 94 C.C.C. 1, [1949] 3 D.L.R. 81 at p. 267.)

[13] The warning is more important after a person has been detained or arrests made because at that point, the person cannot choose to leave and is therefore more vulnerable and may feel compelled to give a statement. In R. v. Singh at para. 32 Charron J. adopted the following passage from Rene Marin Admissibility of Statements (9th Ed. At p. 2-24.2 to 24-3:

The warning should be given when there are reasonable grounds to suspect that the person being interviewed has committed an offence… a police officer [should] consider the question of what he or she would do if the person attempted to leave the questioning room or leave the presence of the officer where a communication or exchange is taking place. If the answer if arrest (or detain) the person, then the warning should be given.

[14] It is also important to consider whether the person has consulted with legal counsel. If the person has consulted with legal counsel, the person may be informed of his right to remain silent and the significance of the caution by police is thereby diminished. Where the suspect has not consulted with counsel, the police caution becomes all the more important as a factor in answering the ultimate question of voluntariness. (R. v. Singh at para 33.)

IV. Application of the Law to the Facts in this Case

[15] Officers Irvine, Ward and Palermo testified on this Application. Officer Irvine testified that at approximately 5:00 a.m. on May 4, 2010, a “high risk take down” was conducted. They were searching for firearms and other items.

[16] Officer Irvine testified that several officers broke down the front door of the apartment at 2005 Eglinton Avenue West with a ram. He and some other officers were masked and wore goggles. As they entered the premises, they threw in a distraction device (which is a very bright light that makes a very loud bang akin to a gunshot). As they entered they announced that this was a police search.

[17] Tyrell came into the hall wearing only his boxer shorts and a singlet and had nothing in his hands. Upon seeing police he ran in the opposite direction and Officer Irvine followed him. Tyrell turned abruptly to face Officer Irvine, bumped his head on the door frame and collided with Officer Irvine.

[18] Tyrell fell to the ground. Officer Irvine testified that he pointed his weapon at Tyrell and zip tied him. Officer Ward testified that he assisted Officer Irvine when Tyrell fell to the ground. Officer Ward pointed his firearm at Tyrell until he was “secured” with zip ties.

[19] Tyrell said he loved his girl, his kids and his cousin. He was lead by Officers Irvine and Ward down the hall to the living room where MacPhee was seated and, in answers to questions posed by Officer Palermo, Tyrell said the two children who were in the apartment at the time of the execution of the search warrant were his and MacPhee’s and that Omar Grizzle was a family member who had been staying there for the last little while.

[20] Officer Irvine estimates that from the time police entered the apartment until the time Tyrell fell took approximately 20 seconds.

[21] Officer Irvine estimates that the whole exchange lasted less than one minute.

[22] At approximately 5:30 a.m. Tyrell was cautioned about the effect of giving a statement of police and the use that could be made of it and thereafter made no further comment.

V. Analysis and Conclusion

[23] It is agreed that there was no police misconduct and that police made no threats promises or inducements to Tyrell.

[24] Tyrell was in investigative detention while the search of the premises was conducted. As such he was not free to leave.

[25] The question is whether, as a detained person, he was given the right to make a meaningful choice as to whether or not to speak to state authorities. For the following reasons I find that he was not:

(a) Police broke down the door, several officers ran through the apartment in the dark at 5:00 a.m. and set a distraction device that gave off strong light and extreme noise. Within twenty seconds, Tyrell had two officers (Irvine and Ward) point their guns at him, put him in a prone position on the ground and tie his hands with zip ties. This could not help but be a shocking experience for Tyrell;

(b) The officers testified that Tyrell exhibited signs of stress including profuse sweating;

(c) Tyrell was not the subject of the police investigation leading up to the search;

(d) The statements were not volunteered but were made in answer to questions posed by Officer Palermo;

(e) Tyrell was detained and therefore not free to go;

(f) Tyrell received no caution about the implications of speaking to police; and

(g) The statement was made within one minute of police entry into his home.

[26] Taken together, these factors raise a reasonable doubt as to voluntariness of the statement made by Tyrell. For these reasons, the statement should be excluded from evidence at trial.

Thorburn J.

Released: July 30, 2013

COURT FILE NO.: CR-13-50000518-0000

DATE: 20130730

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Applicant

– and –

LEVAR TYRELL

Respondent

Ruling

Thorburn J.

Released: July 30, 2013