COURT FILE NOS.: 12-40000 810-0000 &

13-40000 757-0000

DATE: 20131114

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DEON EVANS

Kene Canton, for Her Majesty the Queen

J. Blair Drummie, for Deon Evans

HEARD: November 12 and 13, 2013

DUNNET J.: (Orally)

RULING on SECTION 10(b) and VOLUNTARINESS

Background

[1] The accused, Deon Evans, is charged with committing an armed robbery of a Rogers store located at 5095 Sheppard Avenue East in Toronto on January 7, 2011 and an armed robbery of a Rogers store located at 611 Kingston Road in Pickering on January 19, 2011. On both occasions, it is alleged that he wore a face mask.

[2] Mr. Evans had earlier been implicated in the robberies in a statement to police made by Famien Morrison, a separately charged accused. As a result, a warrant was issued for his arrest.

[3] Following his arrest, Mr. Evans made an utterance and gave a video-recorded statement. He also made a hand-written statement and identified himself in a video-surveillance photograph, neither of which was recorded.

[4] A blended voir dire took place before me concerning the voluntariness of these statements and whether Mr. Evans’ rights under s. 10(b) of the Canadian Charter of Rights and Freedoms were violated.

[5] The Crown submits that the statements were voluntary, given the absence of any threats, promises or inducements. The Crown has the burden of proving beyond a reasonable doubt that the statements were voluntarily made.

[6] Defence counsel argues that the statements should not be admitted as they were not made in an atmosphere free from any hope of advantage. Further, the failure to record the hand-written confession should render it inadmissible because recording devices were readily available but not used.

[7] The defence submits that the statements were made to police subsequent to Mr. Evans being given his right to counsel but prior to giving effect to this right afforded by s. 10(b) of the Charter. He seeks an order staying the proceedings or, in the alternative, an order excluding the statements from evidence. The Crown submits that Mr. Evans was fully apprised of his rights and he was given the opportunity to speak to a lawyer. Thus, there is no basis for the Charter application.

Facts

[8] On June 1, 2011, Police Officers Solomon Tenn and Brian Arcand were on duty making inquiries at 75 and 95 Havenbrook Boulevard in Toronto, which had been the scene of a shooting a few days before.

[9] They saw three men standing near the rear exit of 75 Havenbrook. Names were provided, checks were made and the existence of a warrant for Mr. Evans’ arrest became known. At 9:06 p.m. Officer Arcand arrested Mr. Evans.

[10] The officer advised him of his right to counsel by reading from his memo book. Mr. Evans said that he understood his right but he did not know why he was being arrested. The officer told him that there was a warrant for his arrest for armed robbery. He said that he did not do anything.

[11] The officer asked Mr. Evans if he wanted to call a lawyer and he said yes. The officer cautioned him, reading from his memo book, and Mr. Evans said that he understood the caution.

[12] He was transported to the