Court File and Parties
COURT FILE NO.: J-12-3577
DATE: 2014-09-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Todd Norman for the Crown
- and -
MAJINDER BRAR
Gregory W. Leslie, and Raymond Wong for Majinder Brar
HEARD: March 3, 4, 5, 6, 7, 10, 11, 12, 2014
PRE-TRIAL MOTIONS
[1] Mr. Brar is charged with:
That, on or between the 1st day of September, 2008, and the 18th day of July in the year 2009 at the City of Hamilton, in the said region did obtain, for consideration, the sexual service of T.W., a person who was under the age of eighteen years, contrary to Section 212(4) of the Criminal Code of Canada;
And further that Majinder Singh Brar on or between the 1st day of September, 2008, and the 18th day of July in the year 2009 at the City of Hamilton, in the said region, did communicate with T.W. for the purposes of obtaining, for consideration, the sexual services of T.W., a person who was under the age of eighteen, contrary to Section 212(4) of the Criminal Code of Canada;
And further that Majinder Singh Brar on or between the 1st day of September 2008, and the 18th day of July in the year 2009 at the City of Hamilton, in the said region did by means of a computer system communicate with a person who is or the accused believed is, under the age of 18 years, for the purpose of facilitating the commission of the offence of: attempt to obtain sexual services, for consideration, a person under eighteen years, contrary to the provisions of Section 172.1(2) of the Criminal Code of Canada;
And further that Majinder Singh Brar on or between the 1st day of September 2008, and the 18th day of July in the year 2009 at the City of Hamilton, in the said region, did sexually assault T.W. contrary to the provisions of Section 271(1) of the Criminal Code of Canada;
And further that and further that Majinder Singh Brar on or between the 15th day of May, 2009, and the 31st day in July in year 2009 at the City of Hamilton, in the said region, did obtain for consideration, the sexual services of C.C., a person under the age of eighteen years, contrary to the provisions of Section 212(4) of the Criminal Code of Canada;
And further that and further that Majinder Singh Brar on or between the 15th day of May, 2009, and the 31st day of July in the year 2009 at the City of Hamilton, in the said region, did procure C.C. to become a prostitute, contrary to Section 212 of the Criminal Code of Canada;
And further than and further that Majinder Singh Brar on or between the 15th day of May in the year 2009 and the 31st day of July in the year 2009 at the City of Hamilton in the said region did sexually assault C.C. contrary to the provisions of Section 271 of the Criminal Code of Canada.
These charges were laid on September the 13th, 2010.
[2] The Crown brings this application to determine the voluntariness of two statements made by Majinder Brar on March the 11th, 2010 and September 13th, 2010.
[3] The defence alleges breaches of s. 8, 9 and 10 of the Charter in connection with both the statements and the warrantless search of the Brar home resulting in the seizure of a computer.
[4] The Crown bears the onus of proving voluntariness beyond a reasonable doubt. I must make this determination before turning to the alleged constitutional infringements which must be proven by the defence on a balance of probabilities.
[5] I heard from Officers Easto, Lantz, Millar, Smutnicky, Warrenar, Nedelko, Salmon, and Burt for the Crown; Majinder Brar, Jaswinder Brar (via interpreter), and Priya Brar for the defence.
[6] While voluntariness and Charter issues need be decided separately, as is typical, these motions proceeded as a blended voir dire on these issues given the overlapping evidence.
[7] I viewed videotapes and had transcripts of each of the statements in issue. As such, I had an opportunity to assess Mr. Brar’s demeanour and presentation throughout the statements as well as the approach taken by Detective Easto throughout. I additionally heard from each of Mr. Brar and Detective Easto at the voir dire (among others).
[8] I will deal with the issues in the following way:
Legal Framework-Voluntariness
March the 11th, 2011 statement
- Voluntariness
-Charter Issues
- September 13th, 2010 statement
-Voluntariness
- Search and seizure
The Legal Framework - Voluntariness
[9] To determine the issue of voluntariness I must assess all of the circumstances of the statements. The legal parameters are provided by the Supreme Court of Canada in R. v. Oickle 2001 47 CCC 3d 321. The court urges a “contextual analysis”. Was the accused deprived of an operating mind by virtue of police conduct such as threats, inducements, oppression and trickery? Did police make a quid pro quo offer to the accused to induce him to give a statement/to effectively overcome the will of the accused to compel him to make a statement?
[10] Justice Watt in R. v. Worrall (at page 97) 2012 OJ No. 2711 quotes Justice Iacobucci (at paragraph 351 of Oickle) as he describes the operating mind concept.
Briefly stated, Sopinka J.A. explained that the operating mind requirement “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment” (p. 936). I agree, and would simply add that, like oppression, the operating mind doctrine should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule.
[11] Paragraph 33 of Oickle reminds us that in the context of confessions we must keep in mind the “twin goals of protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes”.
[12] I also read with considerable interest paragraphs 68 through 71 of Oickle wherein trial judges are told to be “alert to the entire circumstances surrounding a confession in making this decision”(paragraph 68). As well, paragraph 69 points out that “the confessions rule also extends to protect a broader conception of voluntariness ‘that focusses on the protection of the accused’s rights and fairness in the trial process.” The case reminds judges throughout that the analysis is a conceptual one.
March 11th, 2010 Statement
[13] Detective Easto is the lead officer in this investigation dealing with complaints made by T.W.; an underaged individual who alleges she was offered money over the internet to have sex in the fall of 2008.
[14] Detective Easto took steps to speak to Mr. Brar who he felt might be connected with the internet address of m[...]@hotmail.com. In-chief Detective Easto said he called [phone numner 1] on March the 10th, 2010, B[…] Avenue North, Hamilton and introduced himself as Detective Easto - Child Abuse Branch to the male self-identified as Majinder Brar. Detective Easto said he told Mr. Brar of allegations of inappropriate sexual activity/of a sexual nature and that he would like to speak to him the next day. Easto told Mr. Brar that his attendance was voluntary; they agreed to meet the following day at Central Police Station (March 11th, 2010) at 1:00 p.m. While Easto learned about a stolen vehicle at some point, he said that had nothing to do with the interview. He emphatically maintains that he did not tell Mr. Brar that he needed a statement regarding the stolen car when he spoke to him on the telephone.
[15] When cross-examined, Detective Easto said it was possible that he initially spoke to Mr. Brar’s mother. When it was suggested that he told both she and Mr. Brar it was about a stolen car, Detective Easto said “No, that’s totally incorrect.” Even when defence counsel suggested that Easto would not want to do anything to “tip his hand” for fear that the computer history could be destroyed unless he told Mr. Brar to come in to discuss the stolen car, Detective Easto said “No, sir – I told him it was about inappropriate sexual activity.” Detective Easto felt that he might have spoken to Mr. Brar twice on the day before the interview but he once again disagreed with defence counsel’s suggestion that he ever told either of Mr. Brar or his mother that it was about a stolen car in these initial phone calls. Detective Easto said he mentioned the sexual allegations only in the second call with Mr. Brar himself.
[16] Mr. Brar testified and said that Detective Easto never said he did not have to attend at the station. He said a call came in from police on March the 8th or 9th. His mother picked it up and handed it to him, saying it was about a stolen car (Mrs. Brar confirmed this evidence as well). When Mr. Brar took the phone the officer said it was to question about the car that was stolen; could he come in at one o’clock. Mr. Brar said that it meant something to him as they had had a Chevy Malibu (belonging to his father Mohla Brar) which had been stolen way back and Mr. Brar thought that they’d found it.
[17] Mr. Brar told the officer that he had to work so he would have to call him back. When Mr. Brar called Easto back saying he could come in at one o’clock, the officer said “Once you come in there are sexual allegations I want to talk to you about.” Mr. Brar said he was confused – what’s that about and the officer told him he would tell him when he came in. Mr. Brar said he was confused and worried about what was going on but did not tell his mother about the new information he had been given. Mr. Brar said he could have told his sister, he wasn’t sure. In cross-examination he said he did not tell her about the sexual allegations; he said he was going in about the car. He did not however agree that leaving this information out meant that he was telling his sister less than the whole truth. He did not agree with the Crown’s suggestion that the phone call had nothing to do with the car; was only about the sexual allegations/that he lied to his sister when he said it was about the car.
[18] Mr. Brar said he was more excited about the car; not really concerned about the sexual allegations as the officer did not say they were about him. He gave varied answers to these questions, at one point agreeing with the suggestion that it would be a great concern to him – so great he did his own research, thinking to himself that the police might be talking to him about rape. Mr. Brar ultimately stated that the correct answer was that he was concerned about the sexual allegations as they weren’t true. The Crown asked why he told the police that he was scared; couldn’t sleep last night. The Crown suggested this was because he thought the police were investigating him for rape, as fear could have nothing to do with the car but everything to do with his worry about the rape.
[19] Much ado was made of the rationale for the meeting. Mr. Brar and his mother Jaswinder said the call had initially been about the stolen car. Ms. Priya Brar confirmed as well that this was the story her brother had told her as the rationale for the attendance at the police station. I find this somewhat of a red herring as it is clear that before Mr. Brar agreed to attend and did in fact attend at the station he admittedly knew that police were investigating “inappropriate sexual activity”, “activity of a sexual nature”. In his statement Mr. Brar said he went to the internet…saw a rape, “I’m like I didn’t rape nobody. I got so scared. Like I couldn’t even sleep last night.” (page 2 of statement)
[20] Detective Easto said “I don’t think I said rape though, I think I said…” and Mr. Brar interjected “sexual allegations”.
[21] The flow of the statement makes it clear that Mr. Brar knew he was there to discuss these allegations. I do not accept as credible his assertion that he thought he was there to discuss the stolen car. This may well have been the story that he chose to tell his mother and sister but I did not accept as credible his story that this was the initial reason Officer Easto said he wanted him to come in. If it had been, I would have expected Mr. Brar to have asked about this purported reason for the interview at some point. He did not. In fact, the first time the stolen Chevy Malibu even enters the conversation was when Mr. Brar (page 19) is asked about cars he had driven. At this point Mr. Brar said “I had a Chevy Malibu…burgundy…got stolen.” The conversation turned to this car. If this had been even one of the stated reasons for the interview I would have expected Mr. Brar to say – you know – the car you called me about. He did not. Instead, he chatted about the insurance and the ongoing litigation. Moreover, at page 38 of the transcript Detective Easto asked “When did your car get stolen?” and Mr. Brar said “Five years ago…and they never found it.” Easto said “That’s crappy, ‘cause it looks really well sort of nice.” This sequence does not fit logically with the story told by the Brar witnesses (Jaswinder and Majinder) of Detective Easto’s stated premise for the meeting on the phone. Additionally, I note that the police report later produced in evidence listed Mohla Brar (Majinder’s father) as the owner of the vehicle. Had Detective Easto called to discuss the car it would be illogical to ask for Majinder and not Mohla. Based on all of the foregoing, I do not accept this version of events.
[22] Regardless, little turns on this finding does little but inform the credibility issues given my acceptance as fact that Mr. Brar attended the police station knowing that the police were investigating sexual allegations. His knowledge of same was revealed very early on in the statement; he was given rights to counsel and cautioned shortly thereafter early on in the meeting. Mr. Brar said he understood both and when asked about his language skills said that he attended both high school and university in Canada.
Voluntariness
[23] I find that Mr. Brar had an operating mind throughout the interview. He chose when to offer information and when not to. He decided for instance not to sign a consent to release of the computer. Easto did not trick him, provide any inducements or threaten him in any way. He was treated well throughout. There was no evidence of any trickery whatsoever. Mr. Brar never asked to leave; was only told he could not at the end of the interview as police needed time to prepare a warrant to obtain his computer. No additional information was gathered after that time and he had spoken to counsel privately twice by this point.
[24] There are no indicia in the entire context of the statement to suggest it was the product of anything other than an operating mind. The Crown has thus satisfied its onus of establishing beyond a reasonable doubt that it was freely and voluntarily made.
Charter Issues
[25] I must then ascertain whether Mr. Brar’s Charter rights were breached. Once again, the onus of establishing breach lies with the defendant and requires proof on a balance of probabilities.
[26] The main thrust of the constitutional challenge stems from the fact that Mr. Brar was not under arrest at the time of the statement. Defence counsel contends that Mr. Brar was “detained” although not charged at the time of the interview; that his jeopardy changed when he revealed his personal email address as m[...]@hotmail.com. They suggest that he thus should have been reread his rights to counsel.
[27] The interview proceeded on the second floor of Central Police Station between 1:16 p.m. and 3:25 p.m. Mr. Brar was seated on a couch throughout the interview. His sister was told to wait outside for him. He asked, near the end whether he could talk to her; he was told he could not. He did not ask nor was he told he could not leave until this end point. The entire interview was videotaped. A transcript was available. I examined both.
[28] Detective Easto was professional and courteous throughout. He read Mr. Brar his rights to counsel and caution early on (in the first couple minutes of the conversation) (page 3-4). He was asked if he understood and Mr. Brar said he did. Mr. Brar chose not to speak to counsel until later on in the interview (page 36).
[29] Detective Easto made arrangements for him to speak to duty counsel (between 2:18 and 2:24) and Mr. Brar confirmed he had been satisfied with same. He was later asked to consent to seizure of his computer and asked once again to speak to counsel. A second opportunity was thus afforded him between 3:16:45 to 3:21:18. He declined consent for the seizure thereafter.
[30] Defence counsel argues that Mr. Brar attended the station and was given his rights before being told that he was a suspect. As such he was unable to make a meaningful decision regarding the exercise of these rights. He argues further that Mr. Brar’s jeopardy changed. Once Mr. Brar identified his e-mail address as m[...]@hotmail.com Detective Easto had reasonable and probable grounds to arrest and should have. Given this change in jeopardy, counsel argues that Mr. Brar should have been read his rights once more.
[31] I do not accept that this fact situation represents a change of jeopardy. I find that Mr. Brar was asked to come to the police station to discuss inappropriate sexual activity; something reiterated at the outset of the interview and specifically related to him. Detective Easto said at page 2 “There’s been an allegation, like I said to you on the phone that you made some, that there is some inappropriate sexual things happen. If you’re the person involved with it then it is a criminal offence.”
[32] Defence counsel relies on R. v. Worrall to establish this change in jeopardy. I find that most interesting case to be distinguishable on its facts. Mr. Worrall, the step brother of the deceased, was brought in as police were trying to confirm the identity of the deceased. When asked to come in there was no indication of foul play nor that Mr. Worral was implicated in anyway. That picture changed based on various admissions made to police. He should have been given his rights when this occurred; he was not.
[33] In the case before me, Mr. Brar was brought in as a suspect. He was told I find as fact, that the police wanted to speak to him about sexual allegations. (which Mr. Brar interpreted to mean rape as he said he proceeded to do internet research). He was given his rights to counsel and cautioned at the outset.
[34] I do not accept this sequence as a change of jeopardy. While defence counsel suggests that Easto had reasonable and probable grounds to arrest once he got the email admission, Detective Easto said that he did not. I accept that the police were still in the information gathering stage at that point. By the end of the interview Detective Easto felt he had grounds to arrest but did not want to as he wanted to make sure he had done a thorough and complete investigation before he enacted the power to arrest. Mr. Brar was ultimately charged on September the 13th, 2010.
[35] The defendant has failed to satisfy their onus of establishing any Charter breach in connection with this statement. The statement is admissible. I would entertain further submissions as to issues relating to redaction if counsel are unable to agree on same.
September 13th, 2010 Statement
[36] Mr. Brar provided a second video statement to police on this date subsequent to his arrest and provision of rights and caution. He spoke to counsel early on. Given these clear facts, voluntariness is the only issue for me to deal with in connection with this statement.
[37] I saw both the videotape itself and had a transcript of same. The Crown seeks to have this statement declared voluntary. I heard from Detective Easto, Mr. Brar, his mother Jaswinder, and sister Priya on this issue.
[38] Once again, there was conflicting information as to the rationale given Mr. Brar for this second meeting. Mr. Brar and his family members said that he was contacted to come and pick up his computer. Detective Easto said he called him on September the 8th, 2010 at [phone numner 2] and asked him to come in on September the 13th, 2010. Mr. Brar said that he originally had asked him to come in the morning and Mr. Brar suggested that he come in after work thereby settling on the 4:30 timeframe.
[39] Detective Easto said “he was aware of the purpose of the attendance” but unfortunately he did not elaborate and his notes did not reference same. (I would note that Easto’s notes are less than ideal.)
[40] Mr. Brar says he was told to come in to pick up the computer only; if he had been told he would be arrested, he would have gotten a lawyer, brought his parents.
[41] The statement itself is however quite instructive. At the outset Detective Easto says “I asked you to come in here to, so I could share with you the results of the computer thing” and Mr. Brar answered “I’m curious”. Detective Easto then proceeded to say that they had found evidence on the computer and he thus placed Mr. Brar under arrest, and provided him his right to counsel and caution.
[42] While little turns on these varied reasons for the interview, I find Detective Easto’s version makes more sense – they had had the computer since March; mighten it be appropriate to share the results.
[43] Moreover, I agree with the position of the Crown that Mr. Brar must have been curious; it made no common sense to say otherwise.
[44] Regardless, the thrust of the defence argument against the Crown’s voluntariness application is that Mr. Brar was too ill; medicated to appreciate what was happening in that room.
[45] At page 10 of the transcripted statement, Mr. Brar says “I tried, I can’t, I can’t even think…and I’m sick too, I’m blowing up right now oh…” This was the first time Mr. Brar referenced sickness. He did not elaborate; nor was he asked what he meant by sick by Detective Easto. Detective Easto in cross-examination said that he felt “sick” was a concern regarding jail as Mr. Brar had not mentioned being sick before they went into the interview room. It was apparent to me from a review of the interview that Mr. Brar was indeed quite upset and considerably worried about the impact of all this on his family. I would suggest that the same is neither unexpected nor surprising in the circumstances.
[46] Detective Easto in both chief and cross-examination that said that Mr. Brar did not seem to him to be under the influence of alcohol or drugs at either interview.
[47] It is Mr. Brar’s position that he was very ill on September the 13th, 2010. He said that he had sleep problems so he could not sleep, had pains in his body and fever. As he had a new job he had to go to work so he took two Tylenol 3’s. At 3:00 p.m. he was still in pain, could not walk but decided to pick up the computer anyway; going there on his own. As such, he took two more Tylenol 3’s – as in the past they had helped with his back, made him able to function. At this time he thinks he took too many so he was “distraught, not alert, did not appreciate what was going on/was in a different world”.
[48] Mr. Brar explained that his comments about being sick, blowing up right now “was because the medication was really kicking in; he didn’t know what was happening, was really hot as his fever was going up”. He did not ask to see a doctor, nor did he say he needed one as he was not that sick; thought it was just the meds he’d taken.
[49] Mr. Brar points to the difference in approach between the March and September statements. In March he’d said nothing after receiving legal advice. In September, he spoke to police but said he was confused as a result of the meds, did not appreciate what he was doing. It was his position that had he been alert he would not have talked further to them.
[50] In cross-examination Mr. Brar was asked about his new job building computer networks and agreed it was complicated both physically and mentally. He agreed that he was able to do this job and drive to and from work on September the 13th, 2010 despite having taken the Tylenol 3’s. Mr. Brar said he was very sick all day, had a hard time walking by the end of the day, but the pain did not prevent the completion of his work day. It was not until cross-examination that he said he intended to go to the walk-in clinic; call in sick, but said he did not tell anyone at work about this. I found it somewhat surprising that this information did not emerge until cross-examination.
[51] Mr. Brar said he got home from work and took two more Tylenol 3’s at 3:20 or 3:30 but he felt he could still safely drive. In cross-examination he indicated that these Tylenols were his dad’s and his grandmother’s as he himself did not have such a prescription. Mr. Brar said he did not think that he should call to reschedule or ask anyone to drive him as no one was around. He said that the pills could have had the effect of confusing him; he felt like it did confuse him.
[52] Mr. Brar said he was sick from the start, coughing and sniffing. He said he understood everything but cannot say what mind state he was in. He said he was confused from the very beginning of the interview; confused by being called into the interview room, did not know where he was; not sure what was going on; and that his statement reflected this confusion/inability to answer questions accurately.
[53] The Crown in cross-examination had Mr. Brar agree that when he came in on September the 13th, 2010 he:
• knew what the police were investigating;
• knew there was an allegation of money for sex over the internet with a 14 year old T.W.;
• had been told of, and exercised his rights to counsel three times in March;
• knew that police had his computer and intended to search its contents.
[54] The Crown then asked if he was curious about the results of this computer search when he went to pick up the computer. Mr. Brar said no as he thought there was nothing there. This statement is entirely contrary to the evidence seen in the videotape. At page 2 Detective Easto says “I asked you to come in here to, so I could share with you the results”. Mr. Brar’s response was “I’m curious”. In cross-examination he said that meant “I’m curious why I’m here”.
[55] It was put to him that when arrested he was asked if he understood, and he said that he did. He similarly agreed that he said he had understood his rights to counsel and caution and in fact exercised those rights to counsel. He had been asked if he wanted a glass of water and said no he would probably throw up. The Crown suggested that this was because he was upset about being arrested. Mr. Brar said no it was because he was sick.
[56] Crown counsel quite effectively took Mr. Brar through all of the factual information that he provided to Detective Easto before he said he was sick. While Mr. Brar agreed that he did understand about the arrest and the rights to get a lawyer, he said he was confused as he was told to come in to pick up the computer. Crown counsel put to him that any confusion as to why he was there would have been eliminated once he was arrested and given his rights to counsel. Mr. Brar said yes but from here on he was still confused. The Crown then suggested to Mr. Brar that the easiest thing in a stressful situation is to tell the truth and so Detective Easto turned the focus to his parents and family. Mr. Brar agreed that he truthfully/without confusion answered questions about:
• His sister’s schooling and job;
• her future husband – a doctor – in Kingston;
• that his parents knew about the allegations;
• that he had to call them;
• that they were upset.
[57] Mr. Brar said his statements that his parents were “majorly upset”, “that it wouldn’t happen again as he was not a child” were untrue. While those are things that he said in the statement, he said that he did not admit that to his parents. I note that Mr. Brar also volunteered information about his new job in response to an earlier question about his work (page 5).
[58] Mr. Brar attributes his confusion to the meds but said it could be anything, could be low blood sugar. The Crown then had Mr. Brar agree that he had said no when asked about any medical conditions they should be aware of when he was taken into custody. Similarly, Mr. Brar never told Detective Easto or anyone of any physical or medical problems that day. He never asked to go to a doctor at the station or at the jail even though he said that he was sick and confused throughout. When he was asked if he had had any complaints he specifically said no. Mr. Brar said he did not recall this.
[59] Jaswinder Brar said that her son had been sick on September 12th and 13th – fever, back pain and diabetes. When asked in cross-examination, she said she did not remember how long her son had had diabetes; could not say if it was under control as “she is not a doctor”; “he’s not a child, can care for himself”. Mrs. Brar said that she had asked if he wanted a doctor and he said that he had medications. Mrs. Brar was an unnecessarily argumentative witness. Moreover, her evidence that she did not recall asking her son or daughter why the police had been at the house, and why they took Mr. Brar’s computer until after he was arrested was entirely unbelievable and coloured all of her evidence presented to me.
[60] Priya Brar also testified. She said that she recalled the day of her brother’s arrest on September 13th, 2010. She said she saw him before school that day and he was sick/had a fever/was not well. She said her brother had been sick on the weekend with the flu, back pain and was not feeling well.
[61] In cross-examination, she said that he was not so ill that he could not go to work as he was on three months’ probation so he could not take time off. Priya said that Mr. Brar was well enough to communicate with her that morning and was well enough to drive.
[62] When the Crown suggested to Ms. Brar that the family had agreed on this “sickness talking point”; Ms. Brar said she would not lie about stuff like this – criminal things, although she does tell white lies like everyone else. I found this a straight up response.
[63] Ms. Brar maintained that she remembered the details of September 2010 fairly clearly. She was thus pointed to a discrepancy between her evidence under oath at the bail hearing in March 2013 and her evidence in-chief. At the bail hearing, Ms. Brar said that she took her brother to the police station both times. When confronted with this inconsistency Ms. Brar said that she was not lying; she was mistaken at the bail hearing, that otherwise she has a good memory of the details. When the Crown suggested that it is unlikely she would remember details of her brother’s physical state four years later, Ms. Brar said “he was sick”.
Analysis
[64] Once again, the onus is on the Crown to prove the statement was voluntarily made. The defence witnesses suggest that it was not as a result of the medications Mr. Brar had taken for various illnesses or the illnesses themselves.
[65] I do not accept as credible the evidence of the defence witnesses in this regard. I do not accept that Ms. Brar would remember details of her brother’s state so many years ago and yet forget whether she drove him to the police station on the same day; the day he was arrested. Moreover, the contentions of illness and medications are quite generic. Mr. Brar did not know if it was a blood sugar issue or overmedicating. He had had flu all weekend yet Tylenol 3’s were taken for his back. The pills were not his but his dad and grandmother’s, as he had no prescription himself. I did not hear from either of them or understand how he got those medications from them.
[66] Moreover, and of fundamental importance to me was Mr. Brar’s appearance and demeanour as demonstrated completely in the videotaped statement. While clearly and understandably shaken; he seemed coherent and rational throughout. I saw no evidence of confusion or impairment; nor did Detective Easto.
[67] The Crown correctly pointed out that Mr. Brar engaged throughout much of the interview – providing true, factual information in response to questions posed. He admitted these many responses were true. It was clear they demonstrated a complete absence of confusion. If as he says he was confused by the illness or the medication, that confusion/illness was clearly not pervasive throughout this entire interview. This is illogical. As well, I note that the only aspects of the statement that Mr. Brar claimed as incorrect were those involving admissions adverse to his legal position. I do not accept that his statement demonstrates confusion.
[68] Mrs. Brar, I find was unhelpful as she was too defensive when asked basic questions such as her son’s diabetes. This seemed odd for a mother. Moreover, her credibility was adversely affected by her implausible evidence earlier that she had asked no one why the police were at their home and seized the computer. This was both illogical and unbelievable and thus tainted her evidence significantly.
[69] At the end of the day, I thus do not accept that the evidence of the defence that Mr. Brar was confused, ill and thus not in a frame of mind to make a clear statement.
[70] Additionally, I note that Mr. Brar did not try to cancel or change the meeting with police due to sickness; something I would have expected if he was only going there to pick up a computer. As well, he managed to function the full day at his admittedly complicated job. He did not mention that he was sick until midway through the interview after much of the evidence collected was revealed to him. As well, he did not tell custody that he had any health or medical conditions.
[71] In the face of all of this, together with his stated understanding when asked and his presentation as witnessed through the video, I do not accept that Mr. Brar’s statement was the product of anything other than an operating mind. No issues were raised as to threats, inducements, oppressive conditions or trickery, and I received no evidence of same.
[72] As such, in the context of this interview of this accused person on this day I find that the Crown has met its onus of proving beyond a reasonable doubt that Mr. Brar’s statement was voluntarily made – the product of his operating mind.
Search and Seizure
[73] After police had completed their first interview with Mr. Brar on March 11th, 2010, at 3:25 p.m. he was asked to remain at the station so that police could attend to secure his computer while Officer Easto prepared an Information to Obtain a Search Warrant.
[74] Before taking these steps, Detective Easto sought Mr. Brar’s consent to release of the computer and related equipment. Detective Easto attempted to convince Mr. Brar how much less intrusive it would be to offer up the computer consensually. Detective Easto told Mr. Brar that without his consent two officers would go to the house, speak to his wife, and sit there while Detective Easto got the warrant; and that same would take a while.
[75] Mr. Brar was provided a copy of the consent form and was once again offered the opportunity to speak to a lawyer. He accepted that offer, spoke to counsel, and ultimately refused to sign the consent provided.
[76] I heard evidence from each of the officers involved in the attendance and securing of the computer at the B[…] Address.
[77] Sergeant Lantz was first tasked with securing the computer systems at the B[…] Address. She got two east end unit officers to meet her at the address. She arrived there at 16:06 hours in a plain door vehicle wearing a suit. She met the two uniformed officers (Millar and Smutnicky) on arrival on the street. At 4:06 there was no answer at the home. At 4:35 Mr. Brar came home with his sister. Sergeant Lantz asked him to let them in. She did not recall either he or his sister asking to see a warrant. Sergeant Lantz asked where the room with the computer was, and Mr. Brar showed them his room. She saw a Dell monitor, printer, fax machine, and tower on the desk. Lantz did not tell Mr. Brar that he could refuse entry to either the house or the room. Sergeant Lantz left the home at 4:44 p.m. The other officers were left outside the bedroom with instructions not to allow anyone into the room/or to touch the equipment.
[78] The entry sequence described by Sergeant Lantz was corroborated by Officers Millar and Smutnicky. Each of these officers were relieved by Officers Warrenar and Nedelko at shift change (as such for three to four minutes there were four uniformed officers in the house). As well, Computer Technical Officer Brent Salmon arrived minutes after Warrenar and Nedelko, in plains clothes. Officer Smutnicky confirmed that his gun was in plain view.
[79] Additionally, PC Warrenar was relieved by PC Buri at 10:10 p.m. PC Buri remained outside the bedroom with Detective Salmon until 12:45 a.m.
[80] Detective Constable Salmon had received a call from Detective Easto saying that he might need his services for a computer that he wanted to seize. Easto asked him to attend to ensure that there was no remote access to the internet; to ensure evidence was preserved. While Detective Salmon said it was possible to destroy data/delete files remotely, he has not seen remote access for destruction then or now. He is aware from his training however, that such programs exist.
[81] Detective Salmon arrived at 6:05 p.m. and entered the home and the room being held by two uniformed officers. He took photographs and removed the local network cable (which allowed internet access to the house), and the phone line from the internet modem. In cross-examination he was asked and said that this would not have prevented any phones in the house from working – it depended how they were set up.
[82] At 9:37 Mr. Brar and his sister asked if she could use her computer in the basement as she had a project to work on. Detective Salmon had not been aware of this other computer as he had not been elsewhere in the house/spoken to the other occupants. He advised her not to use the computer at that time. Detective Salmon told Easto about the second computer at 9:45 p.m. Detective Easto said that he would be seizing all computers; that he should try to secure the basement computer as well.
[83] As the grandmother was asleep downstairs, Mr. Brar’s sister agreed to move the computer upstairs so as not to disturb her. At 10:02 p.m. it was unplugged, brought upstairs, and placed in the bedroom that Detective Salmon was in.
[84] At 12:37 a.m. Detective Easto arrived and had Detective Salmon seize the original computer in the bedroom “under exigent circumstances” as Easto had been unsuccessful in getting the warrant and Mr. Brar had ordered them out of the house. Detective Salmon said that he agreed with the seizure as the computer and evidence could have disappeared/been tampered with.
[85] In cross-examination Detective Salmon said it was his belief that if they had left it there, the information would be gone. Salmon confirms that he did not seek Brar’s permission before seizing/did not tell him he could refuse same. Salmon spoke of the possibility that software could be installed to delete files. He had no information that such had been installed in this computer. While deleted file information might still be found, Detective Salmon said that there is software available that can wipe deleted information as well. While he had not seen this in the field, he has used it himself. Salmon said that there was nothing that could prevent access if he left the computer. The hard drive for instance, could be physically destroyed. He could not, and would not put a lock on it as that would be changing evidence; is not a forensically safe thing to do.
[86] As such Detective Salmon pulled out the power cord, the monitor cables, speakers, headphones and mouse at 12:38 but took only the computer tower with him to the lab at 12:46. (Easto had decided after conversation with the sister to leave her computer behind. Salmon thinks it was hooked back up in the basement but was not sure/had no note of this.) The tower was placed in an exhibit storage room at the Mountain Station awaiting the warrant. The warrant was produced as an exhibit.
[87] Detective Salmon said he did not search the contents before the warrant was obtained. He was not challenged on this statement. I thus accept it to be true. Once the warrant was obtained, he did a forensic examination of the hard drive on April the 16th, 2010 and produced a report of same.
[88] Detective Easto gave evidence that under the exigent circumstances set out in the Code that he had reasonable grounds to believe that there was evidence contained in Mr. Brar’s computer that could be removed/destroyed/altered given that he had computer skills - it was his job.
[89] Easto stated that he knew it would be important evidence and alteration of it could prevent him getting this information. He thus tasked Sergeant Nancy Lantz, two uniformed officers and a computer examiner to make sure that the computer could not be accessed from outside places. He had Mr. Brar stay in the interview room at the police station until the officers were at the house, releasing him at about 6:00 p.m. He confirmed that Mr. Brar was not arrested at the conclusion of the interview. While he felt he had grounds to arrest, he did not do as he wanted to make sure that he had done a thorough and complete investigation before enacting the power to arrest.
[90] Officer Easto made two attempts to get a search warrant. Both were denied due to problems with dates (the initial submission was rejected as it made reference to two dates in the future; the second submission was rejected as only one of those mistaken dates had been corrected in the resubmission).
[91] On his third attempt to submit the information to obtain (at 11:30 p.m.), Detective Easto was told that it would be a 3 1/2 hour wait; that his would be the last priority given the time already expended on this warrant. Detective Easto decided not to submit it a third time given the response of the Justice of the Peace about the wait time.
[92] Detective Easto thus attended at Mr. Brar’s home at 11:58 p.m. and spoke to him again seeking his consent to release of the computer. Easto said that he explained the situation and encouraged Mr. Brar to speak to a lawyer again which he did. He also had Brar write in his book “I have talked to duty counsel. I am not authorizing the police to take the computer, to come back in the morning with a warrant.” “They can camp out all night.”
[93] As a result Easto made the decision (due to the intrusiveness) to have Salmon seize the computer tower only under exigent circumstances. Easto intended to apply thereafter for authorization to search the data within it.
[94] Detective Easto stated that he made the investigative decision not to seek other things in the house as there were other people there besides Mr. Brar and he wanted to be as least intrusive as possible. He stated that he “made mistakes on the warrant and didn’t want to penalize their family for same”. The warrant was ultimately obtained on April the 13th, 2010 from Justice of the Peace Waugh. It was searched thereafter by Detective Salmon.
[95] In cross-examination Detective Easto agreed that the use of computers was a significant part of the case and of paramount importance. Defence counsel thus suggested that Detective Easto would not want to do anything to tip his hand for fear that the computer evidence could be destroyed. Counsel suggested that an officer could have shown up at the home, asked Mr. Brar to come in, and thus avoided the possibility of destruction of evidence. Easto stated that in his experience individuals typically come in when asked by police to do so and do not try to destroy evidence beforehand. He agreed with counsel’s suggestion that one day would have allowed sufficient time to get rid of hardware; and that information could be destroyed and deleted within moments.
[96] Counsel put all of these suggestions to Detective Easto in an effort to once again suggest that indeed Easto told Mr. Brar that he was coming in to speak to him about the stolen car rather than anything else. Easto said, no sir, unequivocally. He went on to say that the suggestion of same was totally incorrect. I accept his evidence to be credible and believable for the reasons referenced in the earlier discussion relating to the voluntariness of the first statement.
[97] Detective Easto confirmed that at the end of his interview he did not want Mr. Brar to leave until he had someone at his home to protect the computer while he was obtaining the warrant. He thus tasked Sergeant Lantz to go to B[…] at 15:35. Detective Easto confirmed that he worked on the ITO for the rest of the day unassisted, putting in the initial request at 18:45 and sending it on at 18:50. He had not given it to anyone to review before submission.
[98] Detective Easto instructed Detective Salmon to unplug the computer when he arrived. He agreed that the seizure began as police entered the residence and seized the room. Easto did not recall Mr. Brar’s mother asking him to see a warrant, but said that she could have. It was his view he did not need one, he was taking the computer under exigent circumstances.
[99] In re-examination Detective Easto said that he did not want to lay charges until all of the evidence was in. He had wanted the computer examined as it could yield confirmation as to whether Mr. Brar was a party, was innocent, or more likely innocent. Easto said he would have considered exculpatory grounds if they were presented in there.
[100] I also heard from each of Majinder Brar, his mother Jaswinder (with an interpreter), and his sister Priya in connection with this issue. Jaswinder Brar indicated that she and her husband got home from work at six o’clock on March 11th, 2010 and saw that their front door was open with police cars parked outside. Her mother and daughter-in-law, Priya and Majinder were inside with the police.
[101] Mrs. Brar said that she had a conversation with the police and asked if they had a search warrant but they did not reply. She was told that she could not touch the phone and could not leave the house. In cross-examination she said police had told them all they had to stay in the house and in fact prevented her daughter from going out to get her cell phone in the car.
[102] She could not remember if she asked her son or her daughter why the police were there after they left that night. She similarly could not remember if she had asked either of them why they took the computer between its seizure in March of 2010 and September 13th, 2010. I found this evidence defied logic and belief and very much called her credibility into question.
[103] I also heard from Mr. Brar’s 29 year old sister Priya. She said that she and her brother left the police station and went directly home at which point they noted that the front door was open, something that was uncommon. They parked the car in the garage (having used the garage door opener) and went into the house through the side door. They saw four police officers in the home. She recalls her brother saying maybe they want the computer but she does not recall if she asked if they had a search warrant. She was told she could not leave the house when she tried to step out to get the cell phone that she had left in her car, as she wanted to call her uncle.
[104] Each of the three Brar witnesses talked about the fact that no one used the front door. Ms. Brar indicated that the police were already inside with her grandmother and sister-in- law (neither of whom speak English) when she and Majinder arrived home.
[105] She saw Detective Easto take the study room computer only, despite the fact that her mother said that he was not allowed to take anything without a warrant. He said he did not need a warrant to take anything. Ms. Brar said they were not able to get the house phone working until the following day.
[106] In cross-examination Ms. Brar changed her evidence saying that her brother did not tell her that maybe they wanted the computer when they first arrived home. When she was challenged about this inconsistency she said she was confused. The Crown asked would her mother not be worried that police were involved, and thus have lots of questions? She agreed that yes she would be curious and extremely worried and that she would certainly have had lots of questions. Ms. Brar did not agree with the Crown’s suggestion that she and Majinder arrived home about 4:35.
[107] Ms. Brar did not recall if she asked her brother what the interview was about on the drive home as she was in ‘shock mode’. She went on to say that she did not know what to ask so did not ask. She knew that they were investigating him about a sexual assault of a 14 year old but did not ask for more details; told him that they would deal with it. The Crown asked why she would not ask more. She said that they both were ‘in very shock mode’, ‘confused, not in their right state of mind’. She did not want to bug him more when he had already been in an interview for four or five hours. When it was suggested that her brother was not surprised to see the police at the house when they arrived, Ms. Brar disagreed saying that he in fact seemed surprised as well.
[108] Ms. Brar was asked what happened after the police left. She said that she and her brother told their father about the investigation (as her mother was taking care of her grandmother). Everything was explained in Punjabi so they would understand. Their mother too was made aware of the investigation and expressed great concern. When the police left Ms. Brar understood that they would be searching the contents of the computer but her brother was very confident that as he did not do it, they would find nothing on it. They heard nothing about the results of the search until September 2010.
[109] Majinder Brar gave evidence as well. His sister drove him home from the police station. On arrival at 5:15 they saw that the front door was open and the police were already inside. He denied that he and his sister let them in. Mr. Brar too explained about the lost keys and the disuse of the front door, that the family always goes in through the garage. When he and his sister arrived home two police were in the bedroom, one on the bed and one at the computer desk. They were not speaking to one another. Mr. Brar spoke to his wife and grandmother asking who let them in. He was told that his wife had opened the door. His parents arrived home around 6:00 p.m.
[110] Mr. Brar said that when Detective Salmon arrived between 6:00 and 6:30 he unplugged the landline and internet cables from the computer. He disconnected the phone line from the modem, thereby disabling all of the phones in the house. As such they were unable to make or receive telephone calls. The phone lines were not plugged back in when the police left, but the Brars did not notice this until after they had gone.
[111] Mr. Brar did not leave the home while the police were there; no one told him that he could. Detective Easto attended, asked him to provide consent for release of the computer, and offered him the option of speaking to the Legal Aid lawyer once more. Brar did this, refused once again to sign the consent, and asked the police to leave the house. Detective Easto then told him that they were going to seize the computer regardless. Mr. Brar asked about a warrant and why they could not wait outside until the warrant was obtained in the morning. Detective Easto said no and took the computer. Mr. Brar felt like he was locked up; could do nothing while the police were there.
[112] In cross-examination it was suggested that he had been aware since the police interview that if he did not sign the consent the plan was to have officers sit in the house until a search warrant was obtained at which point they would take all the computer stuff. Mr. Brar agreed that this plan had been explained to him and he understood why such was the case.
[113] He further agreed that he told his sister that police were coming to seize the computer as they felt that he had offered money for sex over the internet. He did not agree with the suggestion that he and his sister got home about 4:35, or that they let the police officers into the house. He did say that he was not surprised to see the police at the home as he had been told this would happen.
[114] Mr. Brar said that no one took control over him. The only directions he was given that he could not do was go into the room with the computer. He could otherwise move around the house freely; he did not try to leave. He was questioned about having said he felt locked up, (given that Officer Easto allowed him to go home on his own), and said he felt locked up as he could not do anything as the phones were unplugged. Given there were six adults and the phone was unplugged “that tells me I’m locked up.”
Analysis
[115] Not surprisingly it is conceded by the Crown that this was a warrantless search and that Mr. Brar had a reasonable expectation of privacy in this, his home. Given this backdrop I must decide if the search was authorized by law and conducted in a reasonable manner.
[116] The Crown relies on s. 687.11 of the Criminal Code to establish that the search was authorized by law owing to exigent circumstances. I was provided the Court of Appeal decision of R. v. Kelsy, 2011 ONCA 605 on this point. That case involved the search and seizure of a backpack carried by a woman leaving an apartment when police attended there in response to a 911 call. Paragraphs 25 through 31 are most instructive. The case sets out the statutory framework for exigent circumstances.
[117] S. 487.11 of the Criminal Code authorizes a warrantless search if the conditions for obtaining the warrant under 487(1) exist “but by reason of exigent circumstances it would be impractical to obtain a warrant”.
[118] S. 529.3 allows police to enter a dwelling house without a warrant where the conditions for obtaining the warrant exist but by reason of exigent circumstances it would be impractical to obtain a warrant.
[119] “S. 523.3(2)(b) defines exigent circumstances as...including circumstances in which the peace officer…(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling house and that entry into the dwelling house is necessary to prevent the imminent loss or imminent destruction of the evidence.”
[120] Paragraph 31 of Kelsy points out that “the need for this common law power” has largely disappeared in light of the aforementioned statutory amendments.
[121] Paragraph 35 goes on to add: “…by their nature, exigent circumstances are extraordinary and should be invoked to justify violation of a person’s privacy only where necessary…” Reference is also made to Justice Sopinka’s point in R. v. Feeney (at para 52 thereof) quoting James Fontana in the Law of Search and Seizure in Canada, that .“…exigent circumstances arise usually where immediate action is required…to secure and protect evidence of a crime…”
[122] Finally Kelsy quotes Grant at paragraph 25 which states “This exception to the general rule which prescribes warrantless searches must be narrowly construed. In general, the test will only be satisfied where there exists an imminent danger of the loss, removal, destruction or disappearance of the evidence sought in an…investigation if the search or seizure is delayed in order to obtain a warrant.”
[123] In Kelsy, the Ontario Court of Appeal found that police exceeded their authority as they could have merely seized the backpack, but refrained from searching it until a warrant was obtained. The breach lay not in the seizure but in the warrantless search when there was “no imminent risk of loss or destruction of evidence when the police had the item in their custody.” In the case before me that is exactly what police did. They made several attempts to obtain a warrant and were denied as a result of errors made in the ITO. These errors were indeed unfortunate as they prevented issuance of the warrant sought twice and were, in fact the reason why the officer was told on the third attempt at 11:30 p.m. that there would be a three and a half hour wait; this request was now a last priority. Clearly the Justice of the Peace was irritated with Detective Easto as he had “already spent one hour each on your two previous applications”.
[124] Defence counsel points out that each of the attached submission request forms mark the application as “not urgent”. While such may indeed have been preferable, I find that paragraphs 85 to 87 explain that police are in the house guarding the evidence and had been there since 17:45. As a result of the delay Detective Easto attended the home and once again sought Mr. Brar’s consent to release of the computer. When same was not provided he made the decision to seize the computer tower only rather than remain in the home until the warrant was obtained.
[125] Were there grounds to obtain the warrant? Detective Easto laid out all of the information from the complainant, as well as a summary of his interviews with Mr. Brar which included information that he was the only individual to use the home computer being sought.
[126] Moreover, based on the information about the allegations provided to Mr. Brar at the interview (information not known to him prior to the interview), coupled with Mr. Brar’s background in and acknowledged computer expertise, I find it was reasonable for Detective Easto to believe that evidence relating to commission of an indictable offence was present in this home and that entry into the home and seizure of the computer were necessary to prevent the imminent loss or destruction of such evidence.
[127] I find that Detective Easto’s approach was reasonable. He had subjective concern that evidence could be destroyed if access were permitted to Mr. Brar’s computer within his home. This was not merely a fishing expedition. The case being investigated deals with an internet crime specifically. It is reasonable to be concerned about the preservation of evidence in this medium without either seizure or monitoring until a warrant could be obtained.
[128] As such I accept that the statutory conditions of s. 487.11 have been satisfied and that entry into the home to protect the evidence while awaiting the warrant was justified.
[129] Did the entry become unreasonable given the lapse of time between the police entry which I accept to be 4:35 p.m. from the evidence of Sergeant Lantz, and exit from the residence at 12:46 p.m. with the computer tower? I find that it did not.
[130] Detective Easto first attempted to obtain authorization via telewarrant at 6:58 p.m. (He chose the telewarrant approach for expediency-to minimize the intrusion). The warrant was denied at 8:17 p.m. as two dates were in the future - and thus wrong. Easto resubmitted the documentation at 8:46 p.m. but unfortunately had missed one of the two errors. He did not learn of this problem until the second denial at 10:30 p.m. It is clear that these were sloppy mistakes, made I find as a result likely of the pressure and haste of attempting to obtain a warrant when police were already in the residence. Again, these circumstances were enunciated specifically in paragraphs 85 to 87 of the Information to Obtain placed before the justice of the peace on each occasion.
[131] When both errors were corrected and the ITO resubmitted at 11:30, Detective Easto was told it would be a three and a half hour wait/his would be the last priority. It was this response that caused him to go to the residence, seek consent for release of the computer once more, and seize it when such consent was not forthcoming.
[132] I do not accept that a Charter breach has been made out when the cumulative circumstances are considered.
[133] Even if I am wrong about this, a s. 24(2) analysis would, in my view, save the evidence. R. v. Grant, 2009 SCC 32 mandates that a court assess:
the seriousness of the Charter infringing state conduct;
the impact of the breach on the Charter protected interests of the accused, and;
society’s interest in the adjudication of the case on its merits.
[134] The breach could in my view only stem from the delay in obtaining a warrant; a delay occasioned to a large measure by two errors in the 27 page ITO submitted at 6:58 p.m. The police cannot be held to standard of perfection; mistakes might be made when drafting a significant document in haste. These errors were not disclosed until 8:17 p.m. and Easto attempted to correct them and resubmit quickly (perhaps too quickly in retrospect) only to be declined once again at 10:30 p.m.
[135] While I acknowledge that police presence in this family home for so many hours was a significant intrusion, I do not see it as reflecting a wilful or reckless disregard for their rights. I find that Detective Easto and the other police officers at all times acted in good faith. As such, I do not see any of the “serious Charter infringing state conduct from which this court need disassociate itself”. I find Detective Easto acted in good faith in attempting to rectify the errors made to obtain the warrant required and decided to seize the computer only when he realized the police would likely be required to remain in the residence until morning.
[136] When I look to the nature and extent of the breach I acknowledge that prolonged police presence in a home is a significant interference with privacy. That being said, I find as fact from the evidence presented that the police confined their presence and search to the bedroom containing the computer. I accept that they did their best to minimize their intrusion. I accept for instance Detective Salmon’s evidence that he had no idea of a second computer downstairs until Mr. Brar’s sister asked to use it. While this evidence runs contra to Ms. Brar’s on this point, I prefer Detective Salmon’s as his credibility was unshaken by cross-examination and Ms. Brar’s did not stand up nearly so well.
[137] Finally, I find that given that this offence involves internet luring of a minor, the reliability and importance of the computer seized is extremely important to the Crown’s case. Nothing else was seized or searched. The breach, if there is one, does nothing to undermine the reliability of this real evidence. As such, s. 24(2) would save the evidence even if a breach had been established.
MILANETTI J.
Released: 16th September, 2014
COURT FILE NO.: J-12-3577
DATE: 2014-09-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
MAJINDER BRAR
PRE-TRIAL MOTIONS
JAM:mw
Released: 16th September, 2014