SUPERIOR COURT OF JUSTICE - ONTARIO

DATE: 20140404

RE: Her Majesty the Queen

AND:

Philip Hector

BEFORE: MacDonnell, J.

COUNSEL: Katherine Rogozinski, counsel for the Crown

Richard Fedorowicz, counsel, for Philip Hector

ENDORSEMENT

[1] In the course of Mr. Hector’s trial, I provided brief oral reasons for the rulings I made in relation to the admissibility of certain evidence that the Crown proposed to adduce. With respect to some of those rulings, I indicated that additional reasons in writing would follow. These are those additional reasons.

(i) The issues

[2] Mr. Hector is charged with a number of offences in relation to a firearm that was found inside an air conditioning unit in the apartment of Sabrina Bacchus on August 30, 2012. He is also charged with possession of drugs for the purpose of trafficking in relation to a quantity of marihuana and MDMA that was found on the person of Douglas Quinn. Mr. Quinn was in the company of Mr. Hector at the time of Mr. Hector’s arrest in the corridor outside of Ms. Bacchus’s apartment on August 30, 2012.

[3] In addition to evidence concerning the finding of the firearm and the drugs, the Crown proposed to adduce:

(a) statements that Mr. Hector made to the police (i) at the time of his arrest, (ii) in the booking hall at 12 Division, and (iii) in a video interview that was conducted following the booking; and

(b) evidence that in the course of a search carried out as an incident of Mr. Hector’s arrest he was found to be in possession of a key to Ms Bacchus’s apartment.

[4] Before any statement that Mr. Hector made to the police could be adduced by the Crown, the Crown was required to prove beyond a reasonable doubt that it was voluntary. While counsel for Mr. Hector did not concede voluntariness, the main thrust of his argument was that Mr. Hector’s statements and the evidence of his possession of the key should be excluded because they were obtained in a manner that infringed rights guaranteed to him under ss. 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms. Specifically, he submitted that his arrest, which preceded the obtaining of all of the evidence in question, was unlawful and an infringement of s. 9 because the police did not have reasonable grounds for an arrest. Because the arrest was unlawful, he submitted, so too was the pat-down search conducted as an incident of the arrest, resulting in an infringement of his rights under s. 8. For those reasons alone, he submitted, all of the evidence in question was obtained in a manner that infringed his rights and should be excluded under s. 24(2) of the Charter.

[5] After Mr. Hector was placed under arrest, cautioned and informed of his right to counsel, he asserted a desire to speak to his lawyer. Notwithstanding that assertion, while still at the scene of the arrest and before he had been afforded an opportunity to consult counsel, the police asked him questions and he provided responses. Mr. Hector submitted that those responses were obtained in a manner that infringed his rights under s. 10(b) of the Charter and that for that additional reason any statements that he made should be excluded under s. 24(2).

[6] Finally, Mr. Hector submitted that anything that he said to the booking sergeant at 12 Division was also said before he had been afforded an opportunity to consult with counsel and accordingly was obtained in a manner that infringed his rights under s. 10(b).

(ii) voluntariness

[7] In order for a statement made by an accused person to a person in authority to be admissible at the instance of the Crown, the Crown must prove beyond a reasonable doubt that the statement was voluntary. The assessment of voluntariness is contextual and case-specific. While all of the circumstances surrounding the making of the statement will be relevant, of prime concern will be whether the statement was induced by hope of advantage or fear of prejudice emanating from the police in the form of promises, threats or other mistreatment, whether the statement was obtained in oppressive circumstances, whether the maker of the statement had an operating mind, and whether the police employed improper trickery. These concerns are not separate tests but rather factors than may operate together to undermine confidence in the voluntariness of what was said to the police.

[8] Four utterances were made by Mr. Hector in the corridor outside of Ms Bacchus’s apartment. The first was his statement identifying himself as Philip Hector; the second was his statement that he lived in the apartment; the third and fourth were utterances claiming ownership of the drugs that were found on the person of Douglas Quinn. No trickery was employed by the police in their dealings with Mr. Hector. I have no doubt that he had a fully operating mind. There is no evidence that the police offered any inducements or made any threats to persuade him to speak, nor was it suggested in the cross-examination of the officers that there were inducements or threats.

[9] There is some evidence to be considered in relation to the question of oppression, namely the testimony of Douglas Quinn. Quinn had testified at the preliminary inquiry, but he could not be located at the time of trial. On consent, the audio recording of his preliminary inquiry evidence was admitted in evidence. He testified that the police used force in arresting Mr. Hector. His evidence in that respect was contradicted by the police officers, all of whom were very credible. Quinn did not strike me as an honest witness. For example, his evidence that he did not know that the packages Hector gave him to hold contained drugs is difficult to accept. Even if he had been telling the truth about the forcefulness of the officers at the time of Hector’s arrest, the force that he described would not have been sufficient to overbear Hector’s will or to induce him to speak to the police.

[10] In the end, I excluded Mr. Hector’s statement that he lived in the apartment because of a breach of his right to counsel. His statement identifying himself adds nothing of significance to the case for the Crown. The remaining two statements were assertions of ownership of the drugs found in Mr. Quinn’s pockets. The first of those two assertions was spontaneous and manifestly voluntary. The second assertion followed Mr. Hector’s arrest for possession of the drugs, after he had been re-cautioned, and it too was manifestly voluntary.

[11] I excluded Mr. Hector’s utterances in response to the questions that were asked of him at the booking hall on the basis that to admit them would render the trial unfair. To be clear, however, the video of the booking shows a straightforward, civil, polite process in the course of which routine questions were asked and answered, and I am satisfied that anything Mr. Hector said at that time was voluntary.

[12] Mr. Hector conceded that it was unnecessary for the court to view the video of the interview with Mr. Hector that followed the booking. He conceded that if the statements that were made at the time of arrest and the booking process were voluntary, so too was anything said in the subsequent interview.

(iii) The lawfulness of the arrest and the search incident to the arrest

[13] While there was some dispute about the matter, I find that the officer who placed Mr. Hector under arrest was Constable Williams. It is not disputed that she subjectively believed that she had reasonable grounds to arrest Mr. Hector for unsafe storage of the firearm that had been found in the apartment. The issue is whether her belief was objectively reasonable. That is, would a reasonable person in Constable Williams’ position be able to conclude that there were reasonable grounds for the arrest. It is important to bear in mind, in this respect, that the grounds relied upon by Constable Williams need not establish a prima facie case for conviction.

[14] Before she arrived at 333 Sidney Belsey Crescent, Constable Williams had received information from the police dispatcher that a service technician had found a firearm hidden inside the air conditioning unit within an apartment at that address. She also had information that the apartment was occupied by Sabrina Bacchus and an unknown male. Upon arrival at the building she learned from Sgt. Delio that the male associated with the apartment was Philip Hector. A few minutes later, Sgt. Delio told her that Hector was in the building, and that he was on his way up to the second floor. She observed Hector emerge from the stairwell and proceed with Douglas Quinn to the door of Apartment 203, which she believed to be Ms Bacchus`s apartment. When she confirmed that he was indeed Philip Hector, she placed him under arrest.

[15] In my opinion, Constable Williams had objectively reasonable grounds to believe that someone had carelessly stored a firearm within Ms Bacchus’s apartment. Based on the information conveyed to her by the dispatcher and by Sgt Delio, Constable Williams also had reasonable grounds to believe that two persons lived in the apartment and that Mr. Hector was one of them. It was a reasonably available inference, although not a necessary one, that if a loaded firearm were found stored within an apartment occupied by two persons, those persons were aware of its presence, and that if they were aware of its presence it was because they were parties to the storing. Accordingly, I am satisfied that the circumstances known to Constable Williams constituted objectively reasonable grounds to believe that Mr. Hector had committed the offence of unsafe storage of the firearm, that the arrest was lawful, and that there was no infringement of s. 9 of the Charter.

[16] Because the arrest was lawful, so too was the pat-down search conducted as an incident of the arrest. The key to the apartment was found in the course of the search. There is no allegation that any other Charter breach preceded the seizure of the key, and accordingly the finding of the key is admissible in evidence.

[17] If I am wrong in holding that the circumstances of which Constable Williams was aware constituted objectively reasonable grounds for the arrest of Mr. Hector, I would nonetheless not exclude the finding of the key or the utterances claiming ownership of the drugs. There was other information known to Sgt. Delio and to Constable Kennedy that when added to the grounds possessed by Williams would have put paid to the question of whether objectively reasonable grounds for arrest existed. First, the information that Sgt. Delio received from Detective Pinfold prior to attending at 333 Sidney Belsey Crescent was that the male who lived in the apartment – who he was told was Mr. Hector – was “known to the police”. Sgt. Delio testified that “known to the police” means involved in criminal activity. Second, Constable Kennedy had viewed the work order filled out by Ms Bacchus requesting that the air conditioning unit be fixed. In the circumstances, it was reasonable to infer that Ms Bacchus was not the person who had put the firearm in the unit. That inference provided a basis for believing that the only other person living in the apartment – Mr. Hector – was the person responsible.

[18] The fact that the officers collectively had objectively reasonable grounds to arrest, even if the portion of those grounds that were known to Constable Williams fell somewhat short, attenuates both the seriousness of any breach of s. 9 and the impact of it on Mr. Hector’s Charter-protected rights. On balance, I would not have excluded any of the evidence on the basis of a breach of s. 9.

(iv) Were the statements at the time of arrest obtained in a manner that infringed s. 10(b)?

[19] Mr. Hector was properly cautioned and informed of his right to counsel as soon as the pat-down search was completed. It is not disputed that the short delay in complying with the informational obligations of s. 10(b) of the Charter was justified for officer safety purposes. Upon being informed of his right to counsel, Mr. Hector stated that he wished to speak to his lawyer. Once Mr. Hector asserted that desire, Constable Williams was under an obligation to hold off attempting to elicit evidence from him until he had been afforded an opportunity to speak to counsel.

[20] While Mr. Hector was being advised of his right to counsel, Constable Kennedy was arresting Mr. Quinn and searching him. The lawfulness of the search of Mr. Quinn is not in issue here. In the course of the search, Constable Kennedy located three plastic-wrapped bundles in Quinn’s pockets. Two of the bundles contained marihuana (53.37 grams in total), and one contained tobacco. Inside the tobacco were 8 tablets of MDMA (ecstasy). Mr. Hector immediately advised the officers that the bundles belonged to him, not Quinn. Although this assertion was made after Mr. Hector had asserted a desire to speak to counsel, the police had done nothing to elicit it and it was not obtained in a manner that infringed Mr. Hector’s rights under s. 10(b) of the Charter. Accordingly, it is admissible in evidence.

[21] After asserting ownership of the drugs, Mr. Hector was placed under arrest by Constable Williams for possession of the drugs and he was re-informed of his right to counsel. He repeated that he had a lawyer and stated again that he wished to speak to him. He was also re-cautioned. At the end of the caution, Constable Williams asked him if he wished to say anything and he repeated his assertion that the drugs belonged to him.

[22] In view of Mr. Hector’s stated desire to speak to his lawyer, Constable Williams ought not to have asked him, at the conclusion of the caution, if he wished to say anything. By asking that question, she breached her duty to afford him an opportunity to consult counsel before attempting to elicit evidence from him. However, in the circumstances of this case I would not exclude his repetition of the assertion of ownership of the drugs. The question asked by Consable Williams was more of a general follow-up to the caution than it was an attempt to elicit evidence. This infringement of the duty to hold off falls at the less serious end of the spectrum of gravity. Further, Mr. Hector was determined to make it clear that the drugs belonged to him, not Quinn. I am mindful of the dangers of speculating as to whether a statement such as this would have been made irrespective of the failure to hold off: R. v. Hieronymi (1995), 1995 1109 (ON CA), 101 C.C.C. (3d) 31 (Ont. C.A.); see also R. v. Harper (1994), 1994 68 (SCC), 92 C.C.C. (3d) 423 at 429 (S.C.C.). However, in light of the fact that Mr. Hector had already spontaneously admitted ownership of the drugs, the impact of the infringement on his Charter-protected interests was more apparent than real. Having considered the factors set forth by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32. I am satisfied that on balance the admission of what Mr. Hector said in response to Constable Williams’ question could not bring the administration of justice into disrepute.

[23] At some point while Mr. Hector was still in the corridor, but after he had asserted a desire to speak to his lawyer, he stated to Constable Williams that he lived in the apartment with Sandra Bacchus. I am satisfied that this was not a spontaneous utterance but rather a response to a specific question asked by Constable Williams. As Constable Williams knew, before asking the question, evidence that Mr. Hector lived in the apartment would be an important piece of incriminating evidence. Questioning him in that respect before he had been given an opportunity to consult counsel was a breach of s. 10(b). Crown counsel conceded that if that finding were made, the admission of Mr. Hector’s response could bring the administration of justice into disrepute and accordingly that it should be excluded.

(v) The responses to the booking questions

[24] As part of the booking procedure at the police station, Mr. Hector was asked a number of questions, one of which was where he lived. In response to that question, Mr. Hector provided the address of Ms Bacchus’s apartment. Counsel for Mr. Hector submitted that the response was obtained in a manner that infringed Mr. Hector’s rights under s. 10(b) because it was elicited by a question that was asked while the police were under a duty to hold off attempting to elicit evidence.

[25] There are a number of reasons why persons who are booked into a police lockup are asked questions by the booking sergeant upon their arrival. As noted by Justice Dambrot in R. v. Dupe, 2010 ONSC 5757, at paragraph 11, “[the] questions are directed at ensuring the health and safety of the accused and others, ensuring that the accused knows about the right to counsel and is permitted to exercise it, and ensuring that any property in the possession of the accused is properly secured.” The purpose of the questions is not to assist in the investigation of the detainee, and in the present case I am satisfied that when the booking sergeant asked Mr. Hector for his address he was not seeking evidence connecting him to the apartment where the firearm had been found.

[26] In Dupe, Justice Dambrot dealt with a situation that was similar in many respects to the case at bar. Upon his arrest for murder, the accused in that case had been informed of his right to counsel and he had asserted a desire to exercise that right. He was transported to the police station and paraded before the booking sergeant. The booking sergeant asked him routine questions of the kind described above. As it turned out, some of the answers the accused provided became relevant to the viability of his defence of diminished responsibility. As in the case at bar, the accused argued that the answers he provided to the booking sergeant should be excluded because they were obtained in violation of s. 10(b) of the Charter. After a thorough review of the cases, Justice Dambrot rejected that submission. He stated that notwithstanding the duty to hold off, “questioning to assist the accused to exercise his rights, preserve his property, provide care for his family, or protect his health and safety or the health and safety of others, just to name the most obvious examples, are not prohibited”.[1] He ruled that the answers that the accused had given to the booking sergeant were admissible.

[27] In R. v. Pelich, 2012 ONSC 3027, without reference to the decision in Dupe, Justice Dunnet came to the opposite conclusion, holding that questions that were asked of the accused during the booking process constituted a breach of the duty to hold off.

[28] With respect, I prefer the reasoning in Dupe with respect to the s. 10(b) issue. However, that is not the end of the matter. The fact that responses that a detainee has made to a booking sergeant were not obtained in a manner that infringed his rights under the Charter does not necessarily mean that to admit those responses in evidence would not give rise to Charter concerns. Had the booking sergeant been attempting to elicit evidence in relation to the offences, Mr. Hector’s responses would clearly have been obtained in violation of s. 10(b). Notwithstanding the general duty to hold off that would otherwise have applied, the booking sergeant’s questions are permitted because they are not aimed at acquiring evidence. To allow the responses to be used as evidence would overshoot the bounds of the permission, would offend the principle against self-incrimination, and would tend to render the trial unfair. In my view, the reasoning of Justice Moldaver in R. v. Milne (1996), 1996 508 (ON CA), 107 C.C.C. (3d) 118, at paragraphs 25 to 29, and Justice Doherty in R. v. Suberu, 2007 ONCA 60, at paragraph 61 (affirmed without reference to this point, 2009 SCC 33), provides support for this conclusion.

[29] Accordingly, I concluded that what was said to the booking sergeant should be excluded in order to preserve the fairness of the trial.

Summary

[30] For the foregoing reasons, I ruled that the utterances made by Mr. Hector concerning the drugs found on Quinn, the evidence concerning the finding of the key, and the video interview were admissible. I ruled that the statements to Constable Williams and the booking sergeant concerning where Mr. Hector was living were inadmissible.

MacDonnell, J.

Date: April 4, 2014

[1] At paragraph 24