Her Majesty the Queen v. Jordan Mendez and Shamaree Wilson, 2014 ONSC 498

COURT FILE NO.: 12-30000346-0000

DATE: 20140122

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and -

Jordan Mendez and

Shamaree Wilson

Applicants

Joshua Levy and Robert Fried, for the Crown

Marcy Segal, for Jordan Mendez

Victoria Tucci and Alonzo Abbey, for Shamaree Wilson

HEARD: September 9, 10, 18, 19, 20, 23, 24, 26, 27 and 30, 2013

M. Forestell J.

RULINGS ON PRETRIAL APPLICATIONS

Overview

[1] The applicants were jointly charged with the first degree murder of Joel Waldron on February 26, 2011. Mr. Waldron was shot once in the back of the head and twice in the back after leaving his house at around 10:50 p.m. The two accused men were arrested in the early hours of February 27, 2011 at a nearby house. The revolver that killed Mr. Waldron was found in a recycle bin outside the residence in which the two accused men were found.

[2] The trial of Mr. Mendez and Mr. Wilson commenced on September 9, 2013 with pre-trial applications. A blended voir dire was held over 12 days. On October 3, 2013, I provided my rulings on each application and indicated that reasons would follow. These are those reasons.

[3] I will first set out the nature of each application and my ruling. I will next set out the issues to be determined. I will then summarize the evidence called on the blended voir dire. Finally, I will set out my findings of fact and reasons for each application.

The Applications and Rulings

[4] The formal Notices of Application originally filed bore little resemblance to the applications ultimately argued. The positions of both accused changed in the course of the voir dire and argument. In the end, the applications brought were the following:

Mendez

1. Application: Mr. Mendez applied for the exclusion of his statement[^1] made to the police at the police station and for the exclusion of the footprint impression evidence and gunshot residue evidence under s. 24(2) of the Charter on the grounds that his initial detention was arbitrary and the gunshot residue, footwear impressions and statement were obtained as a result of the breach of his s. 8 and s. 9 rights.

Ruling: Neither the initial detention nor the arrest of Mr. Mendez was arbitrary. There was no breach of his s. 8 or s. 9 rights. Even if there were a breach, I would not have excluded the evidence of the footwear impression or the gunshot residue under s. 24(2). The statement is excluded as a result of the subsequent breach of s. 9 at the police station in any event (see below).

2. Application: Mr. Mendez also applied for the exclusion of his statement to the police at the police station under s. 24(1) or 24(2) of the Canadian Charter of Rights and Freedoms as a remedy for a breach of his s. 9 rights to be free from arbitrary detention as a result of the failure of the police to bring him before a Justice of the Peace within 24 hours as required by s. 503 of the Criminal Code. The Crown conceded the s. 9 violation, but argued that the statement should not be excluded.

Ruling: The statement of Mr. Mendez was excluded under s. 24(2) of the Charter as a result of the breach of his s. 9 rights when he was not brought before a Justice of the Peace within 24 hours.

Wilson

1. Application: The Crown sought a ruling with respect to the voluntariness of the statements of Mr. Wilson ‑- both before and after his arrest. If ruled admissible, the Crown intended to introduce the statements as part of its case. Mr. Wilson submitted that the statements were not voluntary. The statements were the following: i) in response to the question by the police as to when Mr. Mendez arrived, Mr. Wilson is alleged to have said “9:00 p.m.” In the same exchange, when asked when he (Mr. Wilson) arrived, he said “2:00 p.m.”; (ii) when the police asked Ms. Karen Charles, the owner of the home, when Mr. Wilson and Mr. Mendez arrived, Mr. Wilson is alleged to have interjected and said “9ish.” When Ms. Charles disagreed and said that he did not arrive at 9:00 the police asked Mr. Wilson what time he arrived and he again said “9ish”; (iii) After Mr. Wilson for the second time said “9ish” as his time of arrival, Ms. Charles said words to the effect of, “If you are going to lie to the police you are going to have to leave my house and tell them.” Mr. Wilson then gathered his jacket and put on his shoes and left the house. This last exchange is relied upon by the Crown as an adoption by Mr. Wilson of the utterance by Ms. Charles; and (iv) the videotaped interview at the police station.

Rulings: 1. The silence and conduct of Mr. Wilson after the statement of Ms. Charles rendered the statement admissible to be considered as an adoptive admission. 2. All of the statements were proven voluntary beyond a reasonable doubt.

2. Application: Mr. Wilson applied for the exclusion of the pre-arrest statements under s. 24(2) of the Charter on the grounds that his rights under ss. 9, 10(a) and 10(b) were violated when the police detained and questioned him without informing him of the reason for the detention, without informing him of his right to counsel and without advising him of his right to silence.

Ruling: Mr. Wilson was not detained before his arrest. As he was not detained, it follows that he was not arbitrarily detained. There was no breach of his s. 9 rights. Further, since sections 10(a), 10(b) and 7 rights are triggered by detention, there was no breach of Mr. Wilson’s ss. 10(a) or 10(b) or s.7 rights.

3. Application: Mr. Wilson applied for the exclusion of his statement identifying the shoes at the door of the residence on the grounds that the police questioning and examination of the shoes was an unreasonable search and a violation of his s. 8 rights.

Ruling: Mr. Wilson had no reasonable expectation of privacy in the outer surface of his shoes. There was no s. 8 breach.

4. Application: Mr. Wilson applied for the exclusion of his statement to the police at the police station and the evidence of the gunshot residue and footwear on the grounds that his s. 9 rights were infringed by his arrest for attempted murder because, without his pre-arrest utterances and the pre-arrest footwear examination by the police, the police lacked reasonable and probable grounds to arrest.

Ruling: The police were entitled to rely on the pre-arrest utterances and the footwear, but even in the absence of the utterances and the footwear, there were grounds to arrest. There was no violation of s. 9. Alternatively, even if there was a violation, the evidence should not be excluded.

5. Application: Mr. Wilson applied for the exclusion of his statement at the police station on the grounds that it was obtained as a result of a violation of right to counsel under s. 10(b) because the police failed to provide him with an opportunity to speak to his counsel of choice.

Ruling: There was no breach of Mr. Wilson’s s. 10(b) rights when the police failed to locate his counsel of choice.

6. Application: Mr. Wilson applied for the exclusion of his statement at the police station and for the exclusion of his shoes and the results of the gunshot residue testing under ss. 24(1) and 24(2) of the Charter on the grounds that he was arbitrarily detained when the police failed to bring him before a Justice of the Peace within 24 hours as required by s. 503 of the Criminal Code. As noted above, the Crown concedes the s. 9 violation, but argues that the evidence should not be excluded under s. 24(1) or s. 24(2).

Ruling: The statement of Mr. Wilson at the police station was excluded under s. 24(2). The evidence of the gunshot residue and shoes was not obtained as a result of the breach and should not be excluded.

7. Application: Alternatively, Mr. Wilson applied for the exclusion of the expert evidence of gunshot residue and footwear impressions on the grounds that its probative value was outweighed by its prejudicial effect.

Ruling: The expert evidence was admissible. Its probative value outweighed any prejudicial effect.

Issues to be Determined

[5] I have framed the issues to be determined in these applications as follows:

1. (a) Was Jordan Mendez’s s. 9 right to be free from arbitrary detention breached when he was detained for investigation on February 26, 2011 and arrested in the early morning hours of February 27, 2011?

(b) If there was a breach of Mr. Mendez’s s. 9 rights in the initial detention, should the evidence of his statement, the gunshot residue test and his shoes be excluded?

2. It is conceded that Jordan Mendez’s s. 9 right to be free from arbitrary detention was breached when the police failed to take him before a Justice of the Peace within 24 hours of his arrest. Should the evidence of his statement be excluded?

3. Was Shamaree Wilson detained at the time of the pre-arrest statements?

(a) If Mr. Wilson was detained, were his ss. 7, 9 and 10 rights infringed?

(b) If his rights were infringed, should the evidence be excluded?

4. (a) Was there an adoptive admission by Shamaree Wilson of the statement of Karen Charles?

(b) Were the statements of Shamaree Wilson to the police voluntary (including the adoptive admission if it is otherwise admissible)?

5. (a) Was Mr. Wilson’s s. 8 right to be free from unreasonable search and seizure infringed when the police asked to examine his shoes?

(b) If his s. 8 rights were infringed, should the evidence of his shoes be excluded?

6. (a) Was the arrest of Shamaree Wilson for attempt murder arbitrary and a violation of his s. 9 rights?

(b) If there was a violation, should the evidence of his statement, the gunshot residue and the footwear be excluded?

7. Was Mr. Wilson’s right to counsel breached by the failure of the police to locate his counsel of choice?

8. It was conceded that Shamaree Wilson’s s. 9 right to be free from arbitrary detention was breached when the police failed to take him before a Justice of the Peace within 24 hours of his arrest. Should the evidence of his statement, the gunshot residue test and his shoes be excluded?

9. Should the evidence of the Gunshot Residue and Footwear Impression experts be excluded because the probative value is outweighed by the prejudicial effect?

The Evidence

[6] In addition to the viva voce evidence called over 12 days, an agreed statement of fact was filed on the voir dire with respect to aspects of the evidence of Dr. Gerrard, the Gunshot Residue expert. Another agreed statement of fact was filed with respect to the evidence of officer Christodoulu. An agreed statement of fact was filed with respect to the interaction of the Assistant Crown Attorneys with a witness, P.C. Pitcher. Also filed were the reports of the two experts, a transcript of the testimony of Dr. Gerrard in another proceeding and the preliminary inquiry transcripts of the testimony of Karen Charles and of officers Higgins and Heilimo.

Overview of the Investigation

[7] The shooting of the deceased, Joel Waldron, occurred near his residence at 56 Blackwater Crescent in Toronto shortly before 11:00 p.m. on February 26, 2011. Jordan Mendez was detained by police at about 12:20 a.m. on February 27, 2011, after leaving a residence at 2 Coltman Crescent. Shamaree Wilson was questioned by police in the residence at 2 Coltman Crescent at around 12:25 a.m. He was arrested when he left the residence at about 1:12 a.m. Coltman Crescent and Blackwater Crescent are in the same general area and are within a few minutes of each other by foot.

[8] Mr. Waldron did not die of his injuries immediately, but was taken to the hospital after the shooting. He died in the early morning hours of February 27, 2011, after the two accused had already been arrested for attempted murder.

[9] The investigation of the shooting of Mr. Waldron involved three different units of the Toronto Police Service.

[10] The investigation was initially the responsibility of 42 Division. The shooting occurred in the geographic area policed by 42 Division. 42 Division officers were the initial responders. A detective from 42 Division, Detective Lucas, took charge of the scene and the investigation within a short time after the call was received.

[11] Two officers from the “Guns and Gangs” unit, officers MacNeil and Frederick, became involved in the investigation shortly after the shooting. The evidence before me is that this unit routinely responds to assist in investigations of shootings.

[12] The homicide unit was notified shortly after the shooting when it was apparent that the condition of the victim was critical. Homicide detectives, Gross and Carbone, took over the investigation after the death of the victim around 2:30 a.m. They monitored events before that time.

Evidence of the Investigation at Coltman Crescent and Blackwater Crescent

[13] Based on the timing of the initial 911 calls, the shooting of Mr. Waldron occurred shortly before 10:52 p.m. on February 26, 2011.

[14] Detective Anthony Lucas took charge of the investigation and left the station at 10:55 p.m., arriving on scene near 56 Blackwater by 11:30 p.m.

[15] Between 11:10 and 11:15 p.m., P.C. Jim Oakes spoke to a witness, Mr. Jaipersaud, who was shoveling snow in his driveway at 12 Coltman Crescent. Mr. Jaipersaud reported that he had seen two young black men run down the pathway beside his house about 20 minutes earlier. The pathway beside Mr. Jaipersaud’s house runs in a southeasterly direction from the south side of Sheppard Avenue to Coltman Crescent. Blackwater, the scene of the shooting, is north of Sheppard Avenue. Another walkway joins Blackwater to Sheppard.

[16] Mr. Jaipersaud described the two men as young, black, “not tall” and wearing dark clothing. One was shouting to the other.

[17] P.C. Oakes broadcast this information over the police radio band, then looked for footprints on the pathway and on Coltman Crescent.

[18] At about 11:30 p.m., P.C. Oakes saw footprints in the fresh snow veering off the sidewalk at 6 Coltman Crescent and continuing beside a carport at 4 Coltman and over a fence into the backyard of 4 Coltman. He saw that the path of the footprints continued through the yard of 4 Coltman and appeared to continue over the fence into the yard of 2 Coltman, around the yard and a shed and then to the front door of 2 Coltman.

[19] At about 11:35 p.m., P.C. Oakes notified uniformed officers Chiasson and Higgins that he had located suspicious footprints leading to 2 Coltman. P.C. Oakes asked P.C. Chiasson and P.C. Higgins to keep an eye on people coming to and going from the residence. They set up observations from their marked police car on the street outside the residence at around 11:35 p.m. Another marked scout car was also outside the residence. P.C. Pitcher and P.C. Consack were in the other car.

[20] At 11:59 p.m., the officers observed that a taxi arrived at 2 Coltman and a woman and child went into the house.

[21] Detective Antonio Frederick and Detective Steven MacNeil of the Guns and Gangs Task Force were dispatched to assist in the investigation and arrived at 56 Blackwater at around 11:40 p.m. Frederick and MacNeil were unable to listen to the police band from 42 Division because, as Guns and Gangs officers, they were on a different radio band. Their communication with other officers over the course of the investigation was by cell phone or in person.

[22] At about 12:05 a.m. on February 27, 2011, P.C. Oakes went from Coltman Crescent to the scene of the shooting at Blackwater Crescent. Oakes informed Detective Lucas of the information provided by Mr. Jaipersaud and of the suspicious footprints leading to 2 Coltman. Frederick and MacNeil were present and were briefed by Detective Lucas around the same time.

[23] Detective Lucas testified that he instructed P.C. Oakes that anyone leaving the residence was to be stopped and investigated. He told P.C. Oakes to convey this instruction to the uniformed officers who were watching the residence.

[24] P.C. Oakes testified that MacNeil and Frederick were present when Oakes told Lucas about the information and footprints. Lucas testified that the two were present but he did not know if they were listening.

[25] P.C. Oakes testified that Det. Lucas issued an “order” or “instruction,” that Oakes should “continue to keep an eye on the address and to stop and investigate anyone going to or from 2 Coltman.” P.C. Oakes communicated this instruction to P.C. Chiasson by cellular telephone, at approximately 12:16 a.m. P.C. Chiasson confirmed that he received instructions to stop anyone going in or coming out of the residence. He understood the instruction to have come from Det. Lucas. Det. Lucas, however, testified that he gave the instruction to only stop males leaving the residence.

[26] At 12:20 a.m., a taxi stopped near the house. Mr. Mendez, his sister and sister’s child left 2 Coltman and got in the taxi. At 12:25 a.m., P.C.s Chiasson and Higgins stopped the taxi. Chiasson testified that he did so because of the earlier instruction of Detective Lucas, conveyed by P.C. Oakes. Frederick testified that he waved at a uniformed officer to stop the taxi to identify the people inside. Chiasson testified that he did not see any signal by Frederick to stop the car.

[27] Chiasson spoke to Mr. Mendez, who identified himself. Chiasson told Mr. Mendez that he was going to be detained and investigated regarding a serious incident in the area. He told him that anything he said could be used against him in court. He gave no other caution and gave no other information to Mr. Mendez. P.C. Chiasson performed a pat down search and found an iPhone and a small baggie (.48 grams) of what appeared to be marijuana. P.C. Chiasson arrested Mr. Mendez for possession of marijuana at approximately 12:30 a.m. Chiasson advised Mendez of his rights to counsel and cautioned him. Mr. Mendez indicated that he wished to speak to a lawyer. Mendez was handcuffed and placed in the back of the scout car.

[28] MacNeil spoke to Mendez in the back of the scout car. He asked if he lived at 2 Coltman and Mendez said “No.” MacNeil then asked him why he was at 2 Coltman. Mr. Mendez said that he was there to “penetrate” his girlfriend.

[29] MacNeil then left with Oakes to examine the footprints.

[30] MacNeil testified that he did not provide Mendez with rights to counsel or a caution prior to asking him why he was there. MacNeil testified that Frederick attended the residence to confirm Mendez’s story. It was his belief that had the story been confirmed, Mendez would have been released.

[31] Cst. Frederick testified that he attended 2 Coltman at 12:25 a.m. He had been given information from Chiasson that Mendez had said that he was at 2 Coltman to visit his girlfriend and that Mr. Mendez’s girlfriend and her mother were in the house. He attended 2 Coltman to confirm that Mr. Mendez had been visiting his girlfriend. He asked Chiasson to attend with him because Frederick was in plainclothes and Chiasson was in uniform. Frederick wanted the occupants of the house to know that they were police.

[32] When Frederick and Chiasson attended at 2 Coltman Crescent, Chanell Charles answered the door. Frederick testified that they did not enter the house but stood at the door. Frederick testified that he told Ms. Charles that they were investigating a shooting and that two people were seen running towards her house. He asked if she knew the male who had left the house. She replied that he was her boyfriend’s friend. Frederick asked to speak to her boyfriend. She said “Shamaree, he wants to speak to you.” Shamaree Wilson then came into the foyer of the house.

[33] Frederick testified that if he had thought that the suspects were in the residence, he would have called ETF. He did not provide Wilson with rights to counsel or any caution prior to speaking to him. He did not consider him a suspect.

[34] Frederick asked Shamaree Wilson what time he had arrived at the house. Mr. Wilson said that he had arrived at 2:00. Frederick then asked “What time did Jordan come here?” and Mr. Wilson replied, “9ish.” Frederick then asked, “Did he leave here at all?” and Mr. Wilson replied, “No.”

[35] Frederick noticed a pair of white Nikes on a grey carpet near the door. He asked, “Are those your shoes?” and Mr. Wilson said “Yes.” Frederick asked, “Can I see the bottom?” Mr. Wilson showed him the bottom of the shoes. The tread seemed similar to the tread marks leading to the house and the shoes were wet.

[36] Frederick testified that Mr. Wilson seemed calm and co-operative. He did not repeat for Mr. Wilson the reason that he was there because he believed that Mr. Wilson had been able to hear his earlier explanation to Ms. Charles.

[37] The two officers then left the house. In the interaction, Chiasson did not ask any questions. The entire interaction took about five minutes.

[38] Frederick testified that he was puzzled by the information he had received at 2 Coltman. Ms. Charles had said that Mr. Mendez was a friend of her boyfriend, but Mr. Mendez had said that he was her boyfriend.

[39] Frederick testified that he believed Wilson’s story that he had arrived earlier that day. He testified that the wet shoes did not cause him to disbelieve Mr. Wilson because he could have gone outside during the time that he was at the house. Frederick left the residence after his conversation with Mr. Wilson. He returned to the cruiser where Mendez was detained. He testified that at this point he believed that Mendez was “less than a person of interest”.

[40] Frederick asked Mendez why he didn’t say that another male was there. Mendez indicated that he just got out of jail and didn’t know about any other guy. Frederick testified that he thought Mendez was in the cruiser because he had been arrested for possession of marijuana. He was not aware that he was detained in relation to the shooting.

[41] Frederick testified that he then contacted Det. Lucas by cellphone and relayed the information. He testified that Lucas said to speak to the owner of the home. Lucas, in his testimony, said that he learned about what had been said by Mendez and Wilson when he attended in person at Coltman Avenue. He then decided that the homeowner should be spoken to.

[42] Frederick returned to the residence and spoke again to Chanell Charles. He asked to speak to her mother. Karen Charles came to the front door. Cst. Frederick testified that he asked Ms. Charles what time Wilson had arrived at 2 Coltman. Frederick testified that Wilson appeared and interjected saying, “Around 9ish”. Karen Charles then stated, “If you’re going to lie to police, you need to leave now and go talk to him.”

[43] MacNeil testified that he attended inside 2 Coltman shortly after Frederick had entered for the second time. He overheard Frederick ask Wilson what time he arrived there. Wilson indicated 9:00 p.m., at which time Karen Charles indicated that if he was going to lie, he should leave.

[44] Karen Charles testified[^2] that her daughter woke her and said that there were police at the door. She got up and went to the front door. Three plainclothes police officers were in the foyer of the house. The police asked who was in the house. Ms. Charles asked what they were talking about. Her daughter then said that Shamaree was there. Ms. Charles asked what was going on and the police officer said that there was a shooting in the area and they had followed footprints to her house. She testified that around this time Shamaree came from the back of the house. The police officer asked him how long he had been there. He began to say nine o’clock and Ms. Charles told him, “Let’s stop right here. I don’t know what’s happening and why the police are at my door but…you weren’t here at nine o’clock and I’m not going to help you sort out where you were at that time.” Ms. Charles testified that the police officer then asked her how she knew that Shamaree was not there at nine and she told him that she went to bed at ten and no one was there. The police officer then said, “If the owner of the house doesn’t agree with your time then you need to come with me and we’ll sort it out outside.” Shamaree then said he wanted to get his stuff and the officer said, “No, we don’t want you going into the back part of the house.”

[45] At another point in her testimony, Ms. Charles testified that Shamaree said nine o’clock and then the officer said that someone had been shot in the neighbourhood. Ms. Charles said, “I don’t want to be part of this. You weren’t here at nine o’clock, you need to go, so I don’t want this – you’re not going to be an alibi for something.” Then the officer said if the owner doesn’t agree, then you need to come with us.

[46] Karen Charles testified that Chanell went to the back of the house and came back with a red hat and a red golf shirt and handed them to the police. At some point in the interaction there was a discussion about Shamaree’s phone. One of the officers wanted to see what phone calls he had made. He had his phone and showed them that it did not work. Karen Charles offered her charger but it was the wrong size.

[47] Karen Charles testified that Shamaree Wilson left the residence with a police officer. Her evidence was that he did so willingly. She testified that the interaction took about 10 to 15 minutes and that the police conduct was “gentlemanly”.

[48] MacNeil testified that he followed Mr. Wilson out of the house and that uniformed officers placed handcuffs on Mr. Wilson. He testified that he went back in the house. He testified that he was not part of any discussion with Mr. Wilson or the uniformed officers about the reason for the detention of Mr. Wilson.

[49] Detective Lucas testified that he entered the house after Mr. Wilson left. He entered with officers Moore and Stuper. He testified that he entered at 1:07 a.m. He was part of a discussion with Karen Charles and Chanell Charles about the time that Mr. Wilson and Mr. Mendez arrived. He learned from Chanell Charles that the two had arrived just before 11:00 p.m. Mr. Wilson arrived first and Mr. Mendez minutes later. They asked her to call a taxi. Mr. Mendez had asked for and had been given a sweater by Ms. Charles before he left. Ms. Charles pointed out a black jacket that had been left by one of the men. Lucas gave instructions that the two men should be arrested for attempted murder.

[50] Frederick testified that before he exited the residence, Karen Charles gave him a red sweater and red ball cap that had been folded in the bedroom. Frederick also seized a leather jacket in the living room. Neither belonged to the Charles family.

[51] P.C. Pitcher was outside the residence at 1:12 a.m. He testified that MacNeil escorted Mr. Wilson out of the residence, possibly holding him by the arm. MacNeil, according to Pitcher, told Pitcher, “This male is under investigation for the shooting. Just stand by with him.” Pitcher asked for Mr. Wilson’s name and Mr. Wilson identified himself. Eight minutes passed and then P.C. Stuper came out and told Pitcher that Mr. Wilson should be arrested for attempt murder. At 1:21 a.m., Pitcher placed Mr. Wilson under arrest for attempt murder. He then searched him and handcuffed him. At 1:24 a.m., he advised him of his right to counsel and asked if he understood. Mr. Wilson said, “Yeah I know.” Pitcher then asked Mr. Wilson whether he wanted to call a lawyer now and Mr. Wilson said “Nah, I’m good.” Pitcher then cautioned Mr. Wlson and asked if he understood and Mr. Wilson nodded his head.[^3]

[52] Pitcher and his partner were asked to take a female to the station. Pitcher then put Wilson in Oakes’s police cruiser. When Oakes returned to his cruiser after photographing the footprints and gun he was told by Pitcher that Wilson was in his car and was in custody. Oakes advised Wilson of the charge of attempt murder and advised Wilson of his right to counsel. He asked Wilson if he understood and Wilson mumbled something. Oakes said “Pardon?” and Wilson said “Yeah, yes.” Wilson asked, “Do you want to call a lawyer now?” and Wilson said, “Yes I guess when I get to the station.” Oakes then cautioned Wilson and asked if he understood. Wilson said “Yes.” Oakes asked if Wilson wanted to say anything and Wilson said “No.” At 2:10 a.m., P.C. Christodoulu took custody of Mr. Wilson from Oakes and again read him his right to counsel and cautioned him. Mr. Wilson said that he understood and that he did want to call a lawyer.

[53] At 1:23 a.m., P.C. Chiasson was instructed to arrest Mr. Mendez for attempt murder. He did so. He also advised Mr. Mendez of his right to counsel and cautioned him. Mr. Mendez said that he understood his right to counsel and the caution. He indicated that he wanted to call a lawyer and he indicated that he did not wish to say anything.

[54] After leaving the residence, Frederick and MacNeil, with the permission of Karen Charles, walked around the residence. At 1:30 a.m., Det. McNeil opened the recycle bin beside the house. There were many prints surrounding the bin. There was a gun visible on top of the garbage inside the bin. Frederick notified Det. Lucas of the finding. The gun turned out to be the gun that shot the deceased.

Evidence of the Investigation at the Police Station

[55] Mr. Mendez was transported to the station by Chiasson and his partner Higgins and was placed in Interview Room 1, in the Youth Bureau, at 1:54 a.m. At 1:59 a.m., Det. Frederick entered Interview Room 1 and determined from Mendez that he had not yet spoken to a lawyer. He instructed an officer to telephone duty counsel. At 2:05 a.m., paper bags were placed over Mr. Mendez’s hands by Chiasson, in the presence of Cst. Fredericks. Mr. Mendez’s shoes were seized.

[56] At 2:28 a.m., officer Higgins asked Mendez if he had a lawyer and he said, “No.” Higgins told him he would call duty counsel for him. At 2:34 a.m., Higgins left a message for duty counsel. At 2:46 a.m., Mendez spoke to duty counsel.

[57] Christodoulu transported Wilson to the police station and placed Wilson in an interview room. Wilson’s hands were bagged by Chiasson at 2:38 a.m. His t-shirt and shoes were seized.

[58] Samples were subsequently taken from the hands of Mr. Mendez and from the hands of Mr. Wilson and submitted for testing for gunshot residue.

[59] Sgt. Kim Gross was the lead homicide investigator. She arrived at 42 Division at 2:00 a.m. Det. Carbone was assisting Sgt. Gross. Sgt. Gross was advised that the deceased was pronounced dead at 2:31 a.m. She spoke to Frederick and Oakes and received information about the investigation prior to 5:30 a.m.

[60] Det. Carbone testified that he wanted to know as much as possible before interviewing the accused. He and Sgt. Gross attended 56 Blackwater at 5:45 a.m. They also attended at 2 Coltman at 6:30 a.m. They returned to 42 Division at around 7:20 a.m.

[61] On their return to 42 Division, Sgt. Gross was advised by Det. Khan, another officer from Homicide, that the two males had not been advised that they were being charged with first degree murder. She instructed Khan to advise them of the charge of first degree murder and to ensure that they had an opportunity to speak to counsel.

[62] Khan arrested Wilson for first degree murder at 7:20 a.m. He advised him of the charge and of his right to counsel. When he asked Mr. Wilson if he wanted to speak to a lawyer, Mr. Wilson said “Yes.” Mr. Wilson then gave Khan the name of his lawyer which he said was “Alonzo Abdi.” Khan asked Wilson to spell the name. Khan then read him the standard caution and asked if he understood. Wilson said nothing.

[63] Khan then arrested Mendez for first degree murder at 7:30 a.m. He advised him of the charge and of his right to counsel. When he asked Mr. Mendez if he wanted to call a lawyer Mr. Mendez said “Yes, but I don’t have a lawyer now.” Khan offered to contact duty counsel and Mendez accepted that offer. Khan then cautioned Mendez and asked if he understood. Mendez said, “Am I the only one charged?”

[64] After leaving Mendez, Khan tried to locate a lawyer named “Alonzo Abdi.” He could not find the name in the lawyers’ directory at the station. At 7:40 a.m. he called duty counsel for Mr. Mendez. At 7:55 a.m. duty counsel called back and at 8:02 a.m. Khan provided the phone to Mendez to speak to duty counsel.

[65] Khan then attempted to locate Alonzo Abdi by searching on the Internet. He did not locate a lawyer by that name. He spoke to Wilson again and told him that he could not locate Mr. Abdi. Wilson said that 33 Division officers had called Mr. Abdi for him the last time he was arrested. Khan then looked up the record from Mr. Wilson’s arrest on July 6, 2010. The only call noted was to duty counsel. He also looked at other records of arrest for Mr. Wilson, but could not find a record of a call to Mr. Abdi. Khan then returned to Mr. Wilson and told him that he could not find a lawyer named Alonzo Abdi. Mr. Wilson agreed to speak to duty counsel.

[66] Khan called duty counsel just before 8:30 a.m. Duty counsel called back at 8:40 a.m. and Wilson spoke to duty counsel at 8:41 a.m.

[67] It is an agreed fact that Mr. Wilson’s lawyer was in fact “Alonzo Abbey” not “Alonzo Abdi”.

[68] Det. Carbone testified that between 7:30 a.m. and 12:25 p.m., he conducted some further investigation. At 12:25 p.m., he attended Wilson’s room and provided him with lunch.

[69] At 2:55 p.m., Wilson was escorted to an interview room. He provided a sworn, videotaped statement from 2:56 p.m. to 4:26 p.m. In the statement he denied any involvement in the shooting and said that he had been at 2 Coltman since 8:00 or 9:00 p.m.

[70] At approximately 5:12 p.m., Mendez was escorted to an interview room. He provided a sworn videotaped statement from 5:13 p.m. to 6:21 p.m. Mendez also denied any involvement in the shooting, but said that he and Mr. Wilson had run to 2 Coltman because Mendez was violating conditions of his release and they saw police cars.

[71] Det. Carbone testified that he was aware of the need to bring the accused to court within 24 hours of their arrest. He believed that if the accused arrived at court after 2:00 p.m., the court would not accept them. He agreed that efforts could have been made to interview them earlier.

[72] Det. Carbone testified that obtaining a statement was not “crucial” to the investigation.

[73] Sgt. Gross testified that she wanted to speak to both accused under oath because a sworn statement would be more compelling. She determined that the Commissioner of Oaths from 42 Division would be on duty at 2:00 p.m. She did not feel that she was prepared enough to interview them before she obtained information from Karen Charles regarding the Rogers alarm and before she received information from Mr. Jaipersaud.

[74] The Commissioner of Oaths attended sometime between 2:00 and 3:00 p.m. and the interview with Wilson commenced at 2:56 p.m.

[75] Sgt. Gross was aware of the requirement that accused persons be brought before a Justice of the Peace within 24 hours. She realized while she was interviewing Wilson that they were not going to make it to court on that day. It was her experience that since the 1990’s Justices of the Peace would refuse to attend the Division to remand an accused. It was her practice to call the Justice of the Peace within the 24-hour period to ask that the Justice of the Peace attend the police station to remand the accused in accordance with s. 503 of the Criminal Code. In the past decade however, her experience was that the Justices of the Peace would refuse to attend or simply not respond.

[76] Sgt. Gross testified that she was aware of the availability of a Justice of the Peace for search warrants or telewarrants 24 hours a day, but testified that Justices of the Peace were not available to remand prisoners in her experience.

[77] Sgt. Gross forgot to make a call asking to have a justice of the peace see or speak to the accused. She left 42 Division at 10:00 p.m.

[78] The two accused were not brought before a Justice of the Peace until sometime after 10:00 a.m. the following day.

Footwear Impression evidence and Gunshot Residue

[79] The shoes worn by Mr. Mendez and Mr. Wilson were seized. A footwear impression expert compared the footprints found near 6 Coltman to the treads on the shoes seized from Mr. Mendez. The expert, John Smissen, prepared a report concluding that the right shoe of Mr. Mendez could possibly have made two of the impressions found at 4 Coltman and that the left shoe of Mr. Mendez could possibly have made two of the impressions found at 4 Coltman. He concluded that Mr. Wilson's right shoe could possibly have made one of the impressions at 4 Coltman.

[80] Mr. Smissen could not say that Mr. Mendez's shoe made the impressions at 4 Coltman or that Mr. Wilson's shoe made the impressions at 4 Coltman. He did not find accidental characteristics or wear characteristics in the impressions. He was only able to compare class characteristics and size. At best he could say that he could not eliminate the shoes of Mr. Mendez and Mr. Wilson as being the source of those enumerated impressions.

[81] An expert, Dr. Gerrard, tested the samples taken from the hands of Mr. Mendez and Mr. Wilson for gunshot residue. He prepared a report indicating that he found nine particles containing the elements of gunshot residue in the tapelift samples from the hands of Jordan Mendez. He found three particles containing the elements of gunshot residue in the samples from Shamaree Wilson's hands.

[82] Dr. Gerrard offered the opinion that a person can have gunshot residue on their hands from discharging a gun, from being in the vicinity of a firearm that is discharged or from transfer from another source. Mr. Mendez was in the back of a police cruiser, in handcuffs, and in two different rooms at the police station before his hands were placed in paper bags by P.C. Chiasson at 2:05 a.m. Mr. Wilson was in two different police cruisers, was in handcuffs and was in two different rooms in the police station before his hands were placed in bags at 2:38 a.m. The police cruisers, the handcuffs and the interview rooms were all potential sources of contamination. This is because police officers have firearms and because people who have been arrested and placed in the handcuffs, cruisers or interview rooms before Mr. Mendez and Mr. Wilson may have had gunshot residue on their bodies or clothes. While Dr. Gerrard, in the studies he had conducted and read, had never seen three particles or more transferred from such sources, he could not rule out the possibility.

1. (a) Was Jordan Mendez’s s. 9 right to be free from arbitrary detention breached when he was detained for investigation on February 26, 2011 and arrested in the early morning hours of February 27, 2011?

[83] There is no dispute that Jordan Mendez was detained from the time that his cab was stopped by the police. There is also no dispute that the reason the police detained him was to investigate his involvement in the shooting and not solely because he was in possession of marijuana.

[84] Counsel for Mr. Mendez takes the position that Mr. Mendez was detained arbitrarily. She argues that the police did not have grounds to justify an investigative detention when they first detained Mr. Mendez and that they did not have sufficient grounds to arrest him when they later arrested him for attempted murder. The Crown’s position is that the police had grounds to investigatively detain and later to arrest.

[85] In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, the Supreme Court of Canada articulated the test to be applied in determining whether a brief investigative detention by the police is lawful. At paragraph 34 of the judgment, Iacobucci J. wrote:

The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officers' reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officers' duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.

[86] R. v. Clayton, 2007 SCC 32, [2007] S.C.R. 725, Abella J. writing for the majority, summarized the development of the law in relation to investigative detention at paras. 25 to 31:

¶25 In R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311, at para. 18, this Court accepted the following test developed by Doherty J.A. in R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.), at p. 499, for assessing whether police interference with individual liberties was justified:

[T]he justifiability of an officer's conduct depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference.

¶26 In determining the boundaries of police powers, caution is required to ensure the proper balance between preventing excessive intrusions on an individual's liberty and privacy, and enabling the police to do what is reasonably necessary to perform their duties in protecting the public. It was expressed by Le Dain J. in Dedman, as follows:

The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference. [p. 35]

¶30 The justification for a police officer's decision to detain, as developed in Dedman and most recently interpreted in Mann, will depend on the ‘totality of the circumstances’ underlying the officer's suspicion that the detention of a particular individual is ‘reasonably necessary’. If, for example, the police have particulars about the individuals said to be endangering the public, their right to further detain will flow accordingly. …

¶31 The determination will focus on the nature of the situation, including the seriousness of the offence, as well as on the information known to the police about the suspect or the crime, and the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope. This means balancing the seriousness of the risk to public or individual safety with the liberty interests of members of the public to determine whether, given the extent of the risk, the nature of the stop is no more intrusive of liberty interests than is reasonably necessary to address the risk.

[87] At the point that P.C. Chaisson initially detained Mr. Mendez, Detective Lucas, who gave the instruction to detain, had the following information: (1) there had been a shooting; (2) two people had been seen running down a pathway away from the shooting, immediately following the shooting; (3) two black men had been seen running down the pathway from the area of the shooting to Coltman Crescent yelling at each other shortly after the shooting; (4) footprints in the snow near where the men were last seen veered into a driveway and backyard and led ultimately to the residence at 2 Coltman; and (5) Mr. Mendez was seen leaving the residence.

[88] The information known to Detective Lucas justified the detention of Mr. Mendez for investigation. At the point that the police detained Mr. Mendez, Detective Lucas had reasonable grounds to suspect that male black occupants of the house at 2 Coltman were involved in the shooting.

[89] The detention of Mr. Mendez prior to his arrest for attempt murder was a lengthy investigative detention. Mr. Mendez was detained for about one hour before being charged. The intrusion on his liberty interests was significant. He was handcuffed and detained in the back of a cruiser. However, balanced against the length of the detention and the intrusion on the liberty of Mr. Mendez was the serious and immediate risk to public safety. A man had been shot in the head outside his home. The shooter or shooters and the gun were at large. The police had reasonable grounds to suspect that male black occupants of the residence at 2 Coltman were involved in the shooting based on the observations of the witnesses and the footprints in the freshly fallen snow. The investigation involved many police officers and two locations. In the circumstances, the nature and length of the detention was reasonably necessary. The lead detective, Lucas, had been informed of all of the information and gave the instruction to detain. He attended promptly and followed through with the further investigation before instructing that Mr. Mendez be charged with attempt murder.

[90] After Mr. Mendez was detained, he told the police that he had been visiting his girlfriend. When the police inquired at the residence, Ms. Chanell Charles identified another man (Mr. Wilson) as her boyfriend. When asked, Mr. Mendez said that he did not know anything about any other guy in the residence. When the police returned to speak to the owner of the house about the time that the two men arrived at the house, Mr. Wilson lied about his time of arrival and that of Mr. Mendez. Lucas learned from the occupants of 2 Coltman that Mendez had changed his appearance by borrowing a sweater and leaving behind a jacket. These circumstances justified the continued detention and ultimately the arrest of Mr. Mendez for attempted murder.

[91] In summary, I find that the initial investigative detention of Mr. Mendez was justified. The police had reasonable grounds to suspect that Mr. Mendez had been involved in the shooting and that a detention was necessary in the circumstances (Mann, at para. 45). Mr. Mendez’s s. 9 rights were not violated. I further find that his arrest for attempted murder was justified. The police, by the time of his arrest, had reasonable and probable grounds to believe that Mr. Mendez had committed the offence. His arrest was not a violation of his s. 9 rights. I would therefore not exclude the gunshot residue evidence, the footwear or the statement on the basis of a violation of Mr. Mendez’s s. 9 or s. 8 rights in the initial detention and arrest.[^4]

(b) If there was a breach of Mr. Mendez’s s. 9 rights in the initial detention should the evidence of his statement, the gunshot residue test and his shoes be excluded?

[92] Even if I am mistaken in concluding that the detention and arrest of Mr. Mendez was justified and that there was no breach of his Charter rights, I would not exclude the evidence of the gunshot residue and footwear under s. 24(2).

[93] The first question to be determined is whether the evidence was obtained in a manner that violated Mr. Mendez’s Charter rights. As set out by Fish J. in R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21:

In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct: Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at p. 1005. The required connection between the breach and the subsequent statement may be “temporal, contextual, causal or a combination of the three”: R. v. Plaha 2004 CanLII 21043 (ON CA), 2004, 189 O.A.C. 376, at para. 45. A connection that is merely “remote” or “tenuous” will not suffice: R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463, at para. 40; Plaha, at para. 45.

[94] Doherty J.A. in R. v. Simon, 2008 ONCA 578, [2008] O.J. No. 3072, explained, at para. 65, that “[s]ince R. v. Strachan, (1988), 1988 CanLII 25 (SCC), 46 C.C.C. (3d) 479 (S.C.C.), the courts have taken a generous view of the kind of connection needed between the Charter breach and the evidence to satisfy the threshold requirement in s. 24(2). The connection may be temporal, causal, contextual, or a combination of the three: R. v. Wittwer, supra, at para. 21.” He went on to explain, at para. 69, that the “sufficiency of the connection between the Charter breach and the subsequent obtaining of the evidence for the purpose of engaging s. 24(2) can only be determined by a fact specific factual inquiry” (citations omitted).

[95] Later, at para. 73 of the same judgment, Doherty J.A. quoted the following comments of Professor Roach in Constitutional Remedies in Canada Aurora: Canada Law 1994, at para. 10.780:

In determining whether evidence is too remote from a Charter violation, courts should reflect on the purposes and interests that the Charter right violated was meant to protect and not so much on the time elapsed between the violation and the discovery of the evidence. If the purposes of the Charter have been met by subsequent compliance or are not implicated in obtaining the evidence, then the court can safely conclude that the evidence was not obtained in a manner that violated the Charter.

[96] In this case, there was clearly a violation of the s. 10 rights of Mr. Mendez when the police failed to advise him of his right to counsel and the reason for his detention. His statements to the police during his detention were “obtained in a manner that violated the rights” of Mr. Mendez. If I am mistaken in concluding that the initial detention and arrest of Mr. Mendez was lawful and his detention and arrest violated his s. 9 rights, there would be a compounding of violations of the Charter rights of Mr. Mendez in his interaction with the police. However, by the time that Mr. Mendez made his subsequent statement and by the time his footwear was seized and his hands tested for gunshot residue, Mr. Mendez had been lawfully arrested, cautioned and given access to counsel. There was a temporal break between the violations and the obtaining of the evidence. There was no causal link between the violations and the obtaining of the evidence. Contextually, the lawful arrest and the access to counsel met the purposes of the Charter in providing to Mr. Mendez information about the reason for his arrest and an opportunity to consult with counsel. The prior statements to the police played no role in the subsequent statement or in the testing for gunshot residue and seizure of footwear.

[97] I have found that in this case there was no temporal, causal or contextual nexus between the evidence and the initial detention. Therefore, the evidence was not obtained in a manner that violated Mr. Mendez’s Charter rights.

2. It is conceded that Jordan Mendez’s s. 9 right to be free from arbitrary detention was breached when the police failed to take him before a Justice of the Peace within 24 hours of his arrest. Should the evidence of his statement be excluded?

Overview

[98] The Crown has conceded the s. 9 violation. The sole issue before me is whether the evidence of Mr. Mendez’s statement to the police should be excluded under s. 24.

[99] At the outset, it is necessary to consider whether the statement was "obtained in a manner" that violated Mr. Grant's Charter rights: R v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 131. Although the statement was complete before the expiry of the 24 hour period, I find that there is a temporal and contextual connection between the breach and obtaining the statement. The police chose to keep Mr. Mendez at the station to obtain a statement even though they knew doing so meant he would not appear before a Justice of the Peace within 24 hours. Both Sgt. Gross and Det. Carbone believed that if the accused were not brought to court before 2:00 p.m., they would not be brought before a Justice of the Peace within 24 hours. They chose to keep the accused at the police station in order to obtain a statement rather than to have them taken to court.

[100] The next question is whether the admission of the statement would bring the administration of justice into disrepute.

[101] In R v. Grant, at para. 71, the Supreme Court of Canada set out the approach to the exclusion of evidence under s. 24(2):

[A] court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[102] Having considered the three avenues of inquiry identified in R v. Grant, I have concluded that the applicant has met the onus of establishing on a balance of probabilities that the evidence should be excluded. I will set out my findings and reasons with respect to each of the three avenues of inquiry.

(1) The seriousness of the Charter-infringing conduct

[103] I find that the Charter infringing conduct was extremely serious and part of a pattern of systemic neglect of the s. 9 rights of detained persons.

[104] Section 503(1) requires the arresting officer to bring an arrested person, who is not released under any other provision of the Criminal Code, before a justice without unreasonable delay to be dealt with according to law. The outer limit for this delay is 24 hours: R. v. Simpson (1994), 1994 CanLII 4528 (NL CA), 117 Nfld. & P.E.I.R. 110 (C.A.), rev’d on other grounds, 1995 CanLII 120 (SCC), [1995] 1 S.C.R. 449; R. v. Koszulap (1974), 1974 CanLII 1461 (ON CA), 20 C.C.C. (2d) 193 (Ont. C.A.).

[105] An inquiry into the seriousness of the infringing conduct begins with an examination of the purposes underlying s. 503. A review of the jurisprudence reveals two interrelated purposes: Judicial review of detention and the transfer of control of accused from the police to the courts.

[106] As Nordheimer J. noted in R. v. Brown, [2007] O.J. No. 2830 (S.C.), at para. 9, aff’d R. v. Brown, 2009 ONCA 633, 247 C.C.C. (3d) 11:

The clear spirit and intent… [of ss. 503 and 516 are] to ensure that a person who is arrested has the ability, at the earliest possible opportunity, to have a judicial officer review their detention and determine if the continuation of that detention is warranted. There can be no debate that any person who is arrested is entitled to prompt and early determination as to the legitimacy and necessity of their detention. This is normally accomplished through a formal bail hearing.

[107] Nordheimer J. also noted, at para. 10, that this purpose is bolstered by the Charter in ss. 11(e) (constitutional right to bail) and 10(c) (right to have detention determined by way of Habeas Corpus).

[108] Similarly, the Newfoundland Court of Appeal stated in R. v. Simpson, at para. 39, that:

It is the duty of the arresting officer to ensure that the person is not detained any longer than is absolutely necessary and that, if he or she is not authorized by law to bring about the release, the person is brought before a justice of the peace who may determine whether the detention should continue or not…

[109] Section 503 has a second purpose: to transfer control of the accused from police to the courts and the prosecution. In the pre-Charter case of R. v. Precourt (1976), 1976 CanLII 692 (ON CA), 39 C.C.C. (2d) 311 (Ont. C.A.), Martin J.A. stated, at paras. 43-45:

Sections 465(1) [now s. 537(1)(c)] and 457.1 [now s. 516(1)] require the Justice to remand the accused in custody in a "prison". The broad definition of a "prison" contained in the Code no doubt introduces greater flexibility with respect to the custodial facility in which the accused may be confined following a remand by a judicial officer than was the case under the former Code. Nevertheless, it is, I think, clear that the Code contemplates custody of a different character following such a remand than the investigative police custody provided for by s. 454 [now s. 503] of the Code.

When the accused has been taken before a judicial officer and remanded on an information the investigative process incidental to arrest, previously referred to, has terminated, a decision to invoke the machinery of the criminal law to try the accused has been made, and he is thereafter under the jurisdiction of the Court. I do not intend to imply, however, that the police may not thereafter, in appropriate circumstances, interview the accused, or conduct procedures involving the accused, for example, an identification parade.

It is implicit, however, in the provisions of the Code and the statutory form of warrant remanding a prisoner that ordinarily where a prisoner is remanded in custody he is to be held in a custodial facility separate from mere holding cells connected with the police function where such a prison is available.

[110] The observation of Martin J.A. that a remand order does not shield an accused from further investigative action was reiterated in two subsequent decisions of the Court of Appeal for Ontario: R. v. Hobbins, (1980), 1980 CanLII 73 (ON CA), 54 C.C.C. (2d) 353, aff’d, 1982 CanLII 46 (SCC), [1982] 1 S.C.R. 553 and R. v. Miller (1987), 1987 CanLII 4416 (ON CA), 62 O.R. (2d) 97. It was also enunciated in a recent case from the British Columbia Court of Appeal, R. v. Ashmore, 2011 BCCA 18, [2011] B.C.J No. 75, leave denied [2011] S.C.C.A. No. 280.

[111] While the ability of the police to continue to investigate is not curtailed by a judicial remand, the remand introduces a level of judicial supervision over the detention. The importance of the provision has been recognized by Canadian courts. In R. v. Simpson, at para. 36, Goodridge C.J.N. stated,

Section 503 may be one of the most important procedural provisions of the Criminal Code. The liberty of the subject is dominant. A person not convicted of an offence should never be held in custody except in accordance with constitutionally valid provisions of the Criminal Code or other legislation.

[112] In the context of discussing the predecessor to s. 503, Martin J.A. wrote in R. v. Koszulap, at para. 32:

[T]he administration of criminal justice in this country is predicated upon the due observance of fundamental safeguards. It is the duty of the courts, at all levels, to be vigilant in making sure that these safeguards are not overlooked or ignored.

[113] Similarly, Nordheimer J. in R. v. Brown noted, at para. 12:

[E]ach of these accused have the right to have the appropriateness of their detention determined at the earliest possible moment. A person who is held in custody, when he or she should not be even if for only the briefest of times, has had one of their most fundamental rights, that is the right to liberty, infringed. In this regard, the words of Mr. Justice Iacobucci in R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309 at paragraph 47 bear repeating:

At the heart of a free and democratic society is the liberty of its subjects. Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.

[114] I find that the failure of the police to take Mr. Mendez before a Justice of the Peace was an extremely serious breach of his s. 9 rights. The systemic failure identified in the evidence on this application shows a disregard for the clear requirements of the Criminal Code. The systemic nature of the problem and the evidence that it has been an issue for approximately a decade make the breach more serious.

[115] On the evidence on this application, the window of opportunity for the police to bring an accused before a Justice in Toronto on a weekend is a very narrow one. The accused can be brought to court between 10:00 a.m. and 1:00-2:00 p.m. on a weekend or s/he will not be accepted at the court or seen by a Justice of the Peace. Where, as here, the accused have been arrested in the early morning, the police are deprived of the opportunity to use the 24 hours that should be available to them for investigation by virtue of the limitations on the availability of Justices of the Peace.

[116] When Parliament set the outer limit of 24 hours to bring an accused before a Justice of the Peace, it must have assumed that some more complex cases would require that the police have available up to 24 hours for investigative purposes. This investigation was a complex one involving three different units of the police force. It was not unreasonable for the police to require time in the range of 20 to 24 hours to properly investigate. However, the lack of availability of Justices of the Peace after approximately 12 hours post-arrest was known to the police. It was not reasonable to choose to investigate at the expense of the rights of the accused to be brought before a court.

[117] The police were well aware that accused persons would not be seen by a Justice of the Peace unless they were brought to the courthouse before 2:00 p.m. She held both accused men past the time that they could be taken before the court. She did so in order to interview them and in order to interview them in optimal circumstances – after gathering as much information as possible and after securing the attendance of a Commissioner of Oaths.

[118] Sgt. Gross knew that if the accused men were not brought to court by 2:00 p.m., they would not be brought before a justice within 24 hours of arrest. She testified that it was her practice to place a call to the office of the Justice of the Peace and to ask a Justice of the Peace to attend. It was also her evidence that in her experience the Justices of the Peace would refuse to attend or simply fail to respond to the request.

[119] While the statement in this case was made within 24 hours, and before the detention became arbitrary, the police knew that in order for the accused to be brought before a justice within 24 hours, he had to be brought to bail court by 2:00 p.m. on February 27, 2011. The police chose to keep him at the police station past that time in order to obtain a statement. The accused’s statement was obtained past the time the police would have had to transport the accused to court to comply with s. 503.

(2) The impact of the breach on the Charter-protected interests of the accused

[120] The second avenue of inquiry is the impact of the breach on the Charter-protected interests of the accused. The impact in this case falls at the less serious end of the spectrum. Mr. Mendez would not have been released from detention had he been brought before a justice. He was charged with murder and could not be released without a bail application before the Superior Court.

(3) Society’s interest in the adjudication of the merits

[121] The third avenue of inquiry is society’s interest in adjudication of the merits. The charge in this case is obviously serious. However, the statement is not an important part of the prosecution’s case. It will play no role in the prosecution unless Mr. Mendez testifies.

Balancing the three avenues of inquiry

[122] Balancing the three factors, I have concluded that the admission of the evidence would bring the administration of justice into disrepute. The focus of s. 24(2) is societal and aimed at systemic concerns: R v. Grant, at para. 70. The seriousness of the Charter breach in this case is grounded in a systemic failure in the Toronto area to provide access to Justices of the Peace in a manner that would allow the police to utilize the full 24 hour period provided by the Criminal Code. There is no evidence of any justification for the lack of availability of Justices of the Peace to remand prisoners in Toronto. I note that the facts set out in R. v. Ashmore, supra, indicate that in British Columbia there is a 24 hour remand centre with Justices of the Peace available to remand prisoners by teleconference. The evidence in the case before me is that Justices of the Peace are available 24 hours a day for other judicial functions but not to remand prisoners.

[123] I note that s. 503 provides an outer limit for detention before remand. This time period would be appropriate in serious and complicated investigations. This was such an investigation. However, the police were not entitled to the benefit of the full time period because of the systemic allocation of resources. The police knew that Justices of the Peace do not deal with arrested persons at the police station and will only deal with them in court between the hours of 10:00 a.m. and 2:00 p.m. Therefore, the police knew, when they kept the accused past 2:00 p.m., that his right to be brought before a Justice of the Peace within 24 hours would be violated.

[124] I therefore conclude the statement of Mr. Mendez is not admissible.

3. (a) Was Shamaree Wilson detained at the time of the pre-arrest statements?

Legal Principles

[125] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 24-26, McLachlin C.J. and Charron J., speaking for the majority, defined detention as follows:

The word "detention" admits of many meanings. Read narrowly, "detention" can be seen as indicating situations where the police take explicit control over the person and command obedience. Read expansively, "detention" can be read as extending to even a fleeting interference or delay. Neither of these extremes offers an acceptable definition of "detention" as used in ss. 9 and 10 of the Charter.

The first extreme was rejected by this Court in R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, which held that detention for Charter purposes occurs when a state agent, by way of physical or psychological restraint, takes away an individual's choice simply to walk away. This encompasses not only explicit interference with the subject's liberty by way of physical interference or express command, but any form of "compulsory restraint". A person is detained where he or she "submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist" (Therens, at p. 644). It is clear that a person may reasonably believe he or she has no choice in circumstances where there has been no formal assertion of police control. Thus the first interpretation must be rejected. This comports with the principle that a generous rather than legalistic approach must be applied to the interpretation of Charter principles and avoids cramping the purpose of the protections conferred by ss. 9 and 10 of the Charter.

The second interpretation of "detention", reducing it to any interference, however slight, must also be rejected. As held in Mann, at para. 19, per Iacobucci J.:

... the police cannot be said to "detain", within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be "detained" in the sense of "delayed", or "kept waiting". But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.

It is clear that, while [sic] the forms of interference s. 9 guards against are broadly defined to include interferences with both physical and mental liberty, not every trivial or insignificant interference with this liberty attracts Charter scrutiny. To interpret detention this broadly would trivialize the applicable Charter rights and overshoot their purpose. Only the individual whose liberty is meaningfully constrained has genuine need of the additional rights accorded by the Charter to people in that situation. [Emphasis added.]

[126] At paragraph 30 of Grant, McLachlin C.J. and Charron J. discuss the concept of psychological detention:

Moving on from the fundamental principle of the right to choose, we find that psychological constraint amounting to detention has been recognized in two situations. The first is where the subject is legally required to comply with a direction or demand, as in the case of a roadside breath sample. The second is where there is no legal obligation to comply with a restrictive or coercive demand, but a reasonable person in the subject's position would feel so obligated.

[127] At paragraph 44, McLachlin C.J. and Charron J. set out the following criteria to be considered in determining, in cases where there is no physical restraint or legal obligation, whether a person has been detained:

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[128] As set out in R. v. Pomeroy, 2008 ONCA 521, [2008] O.J. No. 2550, at paras. 20-21 and 25, and R. v. Hall, 2004 CanLII 46216 (ON CA), [2004] O.J. No. 5007, the fact that police have the authority to detain someone does not mean that the person is in fact detained. As explained by Doherty J.A in Hall, at para. 22:

I see no reason in policy or logic to extend the concept of detention to situations in which the police have the authority to detain an individual, choose not to exercise that authority, and instead permit an individual to choose whether to voluntarily accede to a request from the police. If detention is to have any meaning, it must involve the exercise of some power by a state authority over an individual's liberty, or the reasonable apprehension of the exercise of such power. Here, for tactical reasons, the police deliberately chose not to exercise that power and set about to avoid detaining the appellant.

Findings of Fact

[129] The evidence of the police officers who attended at 2 Coltman was that Mr. Wilson was not a suspect. However, this was clearly a focused investigation. The police were not making general inquiries. They were investigating a shooting and the involvement of the two men who had been seen running from the shooting. The footprints led them to the particular residence. At the point that they went to the door of the residence they were investigating whether Mr. Mendez had in fact been with a girlfriend and for what length of time.

[130] I find that Frederick and Chaisson initially attended and spoke to Chanell Charles and then to Shamaree Wilson. Frederick believed that Chiasson attended with him the second time that he went to the residence. Chiasson denied attending again. Clearly Frederick attended a second time. His partner MacNeil followed him into the residence within a short time and Detective Lucas and two other officers followed after that. I find that Frederick was mistaken about the attendance of Chiasson or another uniformed officer on the second attendance at the residence but this does not materially affect my view of the reliability of his evidence. There was also a conflict between the evidence of Frederick and Lucas as to the nature of the communication between them after Frederick spoke to Chanell Charles and to Shamaree Wilson. The evidence supports the conclusion that there was some communication. I cannot determine whether the communication was by telephone or in person. This minor detail has no significant impact on my assessment of the credibility and reliability of the testimony of either officer. This investigation, as noted above, involved many police officers from different units using different forms of communication.

[131] I accept the evidence of Frederick as to the questions asked and the answers that he received from Mr. Wilson. I find that the police did not enter the house but spoke to Chanell Charles and to Shamaree Wilson from the doorway on the first visit.

[132] On the second visit, the police did enter the house. They were in the foyer of the house when Karen Charles came out to speak to them. Their purpose was to determine from Karen Charles when the two men came to the house. Their purpose was not to speak to Shamaree Wilson when they returned to the house. The police spoke to Mr. Wilson on the second visit only because he came from the back of the house and inserted himself in to the conversation. The police had not asked for him.

Application of the Law to the Facts

[133] The movement of Mr. Wilson was not restricted in any way by the police until he was asked to leave with them after Karen Charles had said that he should leave her home. There was no physical detention of Mr. Wilson until that time. The issue to be determined in this case is whether Mr. Wilson was psychologically detained.

[134] Counsel for Mr. Wilson argued that the police had information that made Mr. Wilson a suspect or at least a person of interest. He argued that the investigation was focused and that had Mr. Wilson left the house he would have been physically detained just as Mr. Mendez was detained.

[135] Officer Frederick testified that had Mr. Wilson left the home he would have been detained for investigation. I accept that Mr. Wilson would have been detained and investigated had he left the house. Mr. Wilson did not leave the home, however, and he was not physically detained. The police had the authority to detain Mr. Wilson for investigation. However, they did not do so because it was unnecessary. The existence of the authority to detain does not assist in determining whether a detention existed. There is no evidence that Mr. Wilson was aware of Mr. Mendez’s detention or that it had any effect upon him.

[136] In determining whether Mr. Wilson was psychologically detained I have considered his age and the circumstances of the two encounters with the police. I have considered the language used by the police and the nature of the investigation.

[137] While Mr. Wilson was a very young man at the time and there were two police officers present at the first encounter and up to five at the second encounter, these factors do not cause me to conclude that Mr. Wilson was psychologically detained. The encounters with the police were brief. The questions were focused but not repeated or intimidating. Mr. Wilson was in the comfort of a home of a friend and her mother was present in the house. The police asked to speak to Mr. Wilson on the first occasion but did not do so on the second occasion. In all of the circumstances I have concluded that Mr. Wilson was not detained.

(b) If Mr. Wilson was detained, were his ss. 7, 9 and 10 rights infringed?

[138] Sections 7, 9 and 10 Charter rights are triggered on detention. In light of my conclusion that Mr. Wilson was not detained, there was no breach of his ss. 7, 9 or s. 10 rights. If I am wrong in my conclusion that there was no detention, Mr. Wilson’s ss.7 and 10 rights were violated when the police failed to inform him of the reason for his detention, failed to advise him of his right to silence and his right to counsel and to provide him with an opportunity to exercise his right to counsel before questioning him.

(c) If his rights were infringed, should the evidence be excluded?

[139] If I had concluded that Mr. Wilson was detained when the police spoke to him at 2 Coltman, I would have excluded Mr. Wilson’s initial statement to the police that he had arrived at 2:00 p.m. and that Mr. Mendez had arrived at 9:00 p.m. However, I would not have excluded his subsequent statement when he interjected and said “9ish” in answer to the question put to Karen Charles as to when he had arrived. This utterance was not obtained as a result of any violation. It was made without prompting by the police and would have been admissible even if Mr. Wilson was detained and his Charter rights breached.

4. (a) Was there an adoptive admission by Shamaree Wilson of the statement of Karen Charles?

[140] The Crown sought to introduce the statement of Ms. Karen Charles made in the presence of Mr. Wilson as an adoptive admission. The evidence of Detective Frederick was that he asked Ms. Charles when Mr. Wilson arrived at the house. Before she could respond, Mr. Wilson said “9ish.” Ms. Charles then said that Mr. Wilson did not arrive at 9:00 p.m. Detective Frederick again asked Mr. Wilson when he arrived and he said “9ish.” Ms. Karen Charles then said, “If you’re going to lie to police, you need to leave now and go talk to him.” Mr. Wilson gathered his things and left. Det. MacNeil was present for this exchange.

[141] The evidence of Karen Charles given at the preliminary inquiry differed from that of Det. Frederick. She testified that the police said that Mr. Wilson needed to come with them and that he complied and left the house with a police officer. He was not permitted to gather his belongings from the back of the house.

[142] While the applicant has not argued that the statement is inadmissible as an adoptive admission, before such a statement can be left with the jury as an adoptive admission, I must determine whether there is evidence from which the jury could infer that the accused adopted the statement and the probative value of the statement must outweigh its prejudicial effect.[^5] In this case, there is evidence from which the jury could infer adoption: the silence of Mr. Wilson in response to Ms. Charles statement that he was lying and his actions in gathering his things and leaving after Karen Charles said that if he was going to lie he had to leave.

[143] The probative value of the statement outweighs any prejudicial effect. The statement adopted by Mr. Wilson is merely one part of a larger interaction with the police. The statement is tendered as post-offence conduct along with the other statements made by Mr. Wilson and his actions after the shooting.

(b) Were the statements of Shamaree Wilson to the police voluntary (including the adoptive admission if it is otherwise admissible)?

[144] Counsel for Mr. Wilson submitted that the statements made by Mr. Wilson at the Charles home and at the police station were not voluntary. It was not argued, nor is there any basis in the evidence to suggest, that the statements of Mr. Wilson were made as a result of threats or inducements by the police. It was not argued, nor is there any basis in the evidence to doubt that Mr. Wilson had an operating mind at the time of the statements. The argument on behalf of Mr. Wilson is that the statement was made as a result of oppression. The atmosphere of oppression, it is argued, was created by the presence of two to three police officers at the home of Ms. Charles and by the absence of a caution. The position of counsel for Mr. Wilson is that Mr. Wilson was detained at the time that he was questioned by the police at Ms. Charles’ home.

[145] The absence of a police caution does not in itself render a statement inadmissible. It is one factor to be considered in the determination of voluntariness. As stated by the Court of Appeal for Ontario in R. v. E.B., 2011 ONCA 194, [2011] O.J. No. 1042, at para. 88:

[146] Even where a person is a suspect, the absence of the standard caution is only one factor to be considered in the voluntariness analysis - just as the presence of such a caution does not automatically lead to the conclusion that a statement is voluntary. As the trial judge noted, ‘[h]ard and fast rules are incapable of accounting for the myriad circumstances that may vitiate voluntariness," and all the circumstances must be scrutinized carefully: see R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 47 and 71.

[147] Whether a suspect is detained at the time that a statement is made is a significant factor in the assessment of the voluntariness of the statement. As stated by Charron J. of the majority in R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 32:

Although the confessions rule applies whether or not the suspect is in detention, the common law recognized, also long before the advent of the Charter, that the suspect's situation is much different after detention. (As we shall see, the residual protection afforded to the right to silence under s. 7 of the Charter is only triggered upon detention.) After detention, the state authorities are in control and the detainee, who cannot simply walk away, is in a more vulnerable position. There is a greater risk of abuse of power by the police. The fact of detention alone can have a significant impact on the suspect and cause him or her to feel compelled to give a statement.

[148] I am satisfied that there were no threats made or inducements offered by the police. I am also satisfied beyond a reasonable doubt that there was no atmosphere of oppression created by the presence of the police at the door of the Charles’ home. In the initial interaction, the police spoke at the doorway of the house without entering the house. They explained to Chanell Charles that there had been a shooting in the area and that there were footprints leading to her house. They asked who was in the house. Mr. Wilson was not present in the hallway at the time that the police first spoke to Ms. Charles. When the police asked Ms. Charles if they could speak to her boyfriend she said “Shamaree they want to speak to you” and he came into the foyer. The house is small and it was a reasonable inference by the police that Mr. Wilson was able to hear the conversation between the police and Ms. Charles. Even if that was not the case, the police had no obligation to explain the reason for their questions. The presence of the police at the door asking questions did not, in itself, create an atmosphere of oppression.

[149] At the point that the police initially attended to ask about Mr. Mendez, Mr. Wilson was not detained[^6] and he was not a suspect. The police were seeking to confirm Mr. Mendez’s assertion that he had been at the residence with his girlfriend and his time of arrival. The failure to caution Mr. Wilson did not render his responses involuntary.

[150] When the police returned to speak to Karen Charles, they did not seek to ask any questions of Mr. Wilson. Mr. Wilson attended and inserted himself into the conversation with Ms. Charles. He was not detained and he was not a suspect. His responses in conjunction with the information given by Karen Charles about his time of arrival caused him to become a suspect. The police had no obligation to caution Mr. Wilson when they were not seeking to question him and he was inserting himself in to the discussion. While the police did follow up with a question about his arrival time after he had interrupted Ms. Charles, Mr. Wilson was still not yet a suspect and there was no reason to caution him. Mr. Wilson’s utterances were voluntary.

5. (a) Was Mr. Wilson’s s. 8 right to be free from unreasonable search and seizure infringed when the police asked to examine his shoes?

[151] I have found that Mr. Wilson had no reasonable expectation of privacy in the sole of a shoe which he wore in public. The case law with respect to reasonable expectation of privacy in articles of clothing was recently summarized by Clark J. in R. v. Hamadeh, 2011 ONSC 1241, [2011] O.J. No. 819, as follows:

[133] In R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, the court held that a reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances and listed a number of factors to be considered. Inasmuch as most of the factors listed deal with a search as oppose to a seizure, the factors relevant to this inquiry are the existence of a subjective expectation of privacy and the objective reasonableness of that expectation. In assessing the totality of the circumstances, a “contextual approach” is required: R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, para. 139.

[134] In R. v. Reddy, 2010 BCCA 11, 282 B.C.A.C. 51, the police conducted a warrantless search of the appellant’s jacket and found the handgun that became the subject matter of the prosecution. In setting aside the conviction, at paragraph 85, Frankel J.A., speaking for the majority, held that “[a]bsent other evidence, an expectation of privacy can be assumed with respect to the contents of an item of clothing a person is wearing.” See also R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59.

[135] However, in R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at paragraph 40, it was stated that “a person can have no reasonable expectation of privacy in what he or she knowingly exposes to the public, or to a section of the public..." Therefore, as opposed to a person having an expectation of privacy interest in the contents of his jacket, in terms of the jacket itself, when the applicant went out in public wearing it he exposed it to all the world.

[136] In R. v. Blake, 2007 YKCA 5, 157 C.R.R. (3d) 17, the court held that the police did not breach the appellant’s s. 8 right because he had no expectation of privacy in the sole of his shoe. Albeit the appellant was in custody at the time of the seizure, Finch C.J.Y. observed that “Blake was wearing the shoes in public at the time of his arrest”. I take from that remark not that the appellant had no expectation of privacy because he was under arrest at the time the shoes were inspected by the police, but, rather, that he had no privacy interest by virtue of having worn the shoes in public.

[137] In R. v. Abbey, [2006] O.J. No. 4689 (S.C.J.); reversed on other grounds, 2009 ONCA 624, 97 O.R. (3d) 330 (C.A.), [2010] S.C.C.A. No. 125, the accused had to remove his jacket in order to facilitate the police taking photographs of his T-shirt. Archibald J. held that the accused’s s. 8 right had been infringed when the police took the photographs because he had an expectation of privacy in what was under his jacket. Implicit in that holding, to my mind, is the proposition that Abbey had no privacy interest in that which was there to be seen without the removal of any garment.

[138] In R. v. Rajaratnam, 2006 ABCA 333, 67 Alta. L.R. (4th) 22, a police officer smelled a strong odour of marijuana emanating from the appellant’s bag. Relying on Tessling, the appellant argued that the police officer’s act of sniffing the bag constituted an illegal search. In dismissing the appeal, the Court distinguished Tessling on the basis that it dealt with the use of sophisticated technology. The court went on to hold that it is obvious in certain situations that a person, through the use of his own senses, may come to know certain personal information about another person, without his perception of that information constituting a search. In this case, the stains on the applicant’s jacket were obvious to the casual observer; added to that, of course, is the fact that the applicant, doubtless with a different outcome in mind, went to some lengths to draw the attention of the officers to the jacket.

[139] In R. v. Dobni, [1999] B.C.J. No. 1410 (S.C.), Tysoe J., as he then was, held that the accused, an inmate at a remand center, had no reasonable expectation of privacy in clothing in the custody of his custodians. At paragraph 13, His Lordship went on to say:

In addition, Mr. Boutilier was wearing the clothes and shoes in public when he was arrested. He could not have had any expectation of privacy when he was wearing them in public. If the items had not been removed from him, the track pants and the shoes would have been in view while he was wearing them in his cell and he would not have had any expectation of privacy. In my opinion, the fact that the items were taken from him when he entered the Surrey Pre-Trial Centre does not give rise to a reasonable expectation of privacy. [Emphasis added.]

[140] In R. v. Johnson, 2009 MBQB 281, [2009] M.J. No 454, police officers investigating the discovery of a dead body observed the accused nearby. Because he fit the description of the suspect, the officers advised the accused they were detaining him for investigative purposes. In the course of questioning the accused, they observed a red stain on his shoe. The accused advised that he worked at a donut shop and the substance was spilled syrup. He was placed in a police car for approximately 45 to 60 minutes while police verified his account of his whereabouts. At no time was the accused read his rights. The Crown conceded that the s. 10(b) Charter rights of the accused were breached during the investigative detention of the accused. At issue was the admissibility of the officers' observations of the red stain on the shoe. In holding that the evidence of the shoe was admissible, at paragraph 35, McKelvy J. relied on R. v. Duck (2004), unreported (Man. Q.B.), in which, at page 11, the trial judge held that the accused had no reasonable expectation of privacy “in a shoe being worn on the streets of Winnipeg.”

[152] In the case before me, the shoes worn by Mr. Wilson had been worn in public. The police examined only the outside of the shoe. While the shoe had to be moved to facilitate the observations, it was not removed from the person of the accused nor was it altered in any way. I have concluded that Mr. Wilson had no reasonable expectation of privacy in the exterior of his shoe. There was no violation of his s. 8 rights when the police examined the bottom of the shoe in the residence before Mr. Wilson’s arrest.

(b) If his s. 8 rights were infringed, should the evidence of his shoes be excluded?

[153] Even if I am wrong in my conclusion that there was no breach of s. 8 when the police examined the bottom of the shoes, I would not exclude the evidence. The shoes of Mr. Wilson were seized following and incident to a valid arrest. The shoes were not obtained as a result of the earlier examination. The earlier examination of the shoes was not connected temporally, causally or contextually to the subsequent seizure of the shoes.

6. (a) Was the arrest of Shamaree Wilson for attempt murder arbitrary and a violation of his s. 9 rights?

[154] Counsel for Mr. Wilson argued that there were no reasonable grounds for the arrest of Mr. Wilson without his pre-arrest utterances and the examination of his shoes. He argued that the statements should be excluded as a result of the violation of Mr. Wilson’s ss. 7, 9 and s. 10 rights and that the examination of the shoes was a s. 8 violation and could not therefore be relied upon as a ground for the arrest.

[155] As indicated above, I have found that there was no violation of Mr. Wilson’s ss. 7, 8, 9 or 10 rights prior to his arrest. Therefore the validity of the arrest was unaffected by any Charter breach. However, even without the statements of Mr. Wilson and the examination of his shoes, the police had reasonable grounds for the arrest. The shooting occurred just before 11:00 p.m. Two men were seen running from the shooting down a pathway. Two men were seen at about the same time running down another pathway to Coltman Crescent. Footprints in the snow led off the sidewalk and through a backyard to 2 Coltman. The police had information from the occupant of 2 Coltman that Mr. Wilson and Mr. Mendez arrived at around 11:00 p.m. and asked for a taxi. They also had information that both men changed their clothing. This was sufficient to justify the arrest.

(b) If there was a violation, should the evidence of the statement, the gunshot residue and the footwear be excluded?

[156] Even if I am mistaken in concluding that the police had reasonable grounds to arrest Mr. Wilson at 1:21 a.m., for attempted murder, within 9 minutes of the arrest of Mr. Wilson the police located the gun in the recycle bin outside 2 Coltman. Therefore, even if the arrest was not reasonable at 1:21 a.m., it was reasonable at 1:30 a.m., following the discovery of the gun. I would not exclude the evidence under s. 24(2) even if there were a s. 9 breach in the circumstances. The evidence was not obtained as a result of the breach. The conduct of the police could not be characterized as serious, the impact on the Charter protected interests of the accused was minimal and society’s interest in the adjudication of the case on its merits would be significantly impacted by the exclusion of the evidence.

7. (a) Was Mr. Wilson’s right to counsel breached by the failure of the police to locate his counsel of choice?

[157] The scope of the right to counsel of choice was recently summarized in the judgment of the majority in R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, at paras. 17-18:

As explained in Willier, the right to choose counsel is one facet of the guarantee under s. 10(b) of the Charter. Where the detainee opts to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles him or her to a reasonable opportunity to contact chosen counsel. If the chosen lawyer is not immediately available, the detainee has the right to refuse to contact another counsel and wait a reasonable amount of time for counsel of choice to become available. Provided the detainee exercises reasonable diligence in the exercise of these rights, the police have a duty to hold off questioning or otherwise attempting to elicit evidence from the detainee until he or she has had the opportunity to consult with counsel of choice. If the chosen lawyer cannot be available within a reasonable period of time, the detainee is expected to exercise his or her right to counsel by calling another lawyer, or the police duty to hold off will be suspended: R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3; R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138.

What amounts to a reasonable period of time depends on the circumstances as a whole, including factors such as the seriousness of the charge and the urgency of the investigation. It is also informed by the purpose of the guarantee. The right to counsel upon arrest or detention is intended to provide detainees with immediate legal advice on his or her rights and obligations under the law, mainly regarding the right to remain silent. As Lamer J. (as he then was) aptly noted in R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190, at p. 206:

It is not always the case that immediately upon detention an accused will be concerned about retaining the lawyer that will eventually represent him at a trial, if there is one. Rather, one of the important reasons for retaining legal advice without delay upon being detained is linked to the protection of the right against self‑incrimination. This is precisely the reason that there is a duty on the police to cease questioning the detainee until he has had a reasonable opportunity to retain and instruct counsel.

It is also because of this immediate need to consult counsel that information about the existence and availability of duty counsel and Legal Aid plans must be part of the standard s. 10(b) caution upon arrest or detention (Brydges). In turn, the detained person, faced with this immediate need for legal advice, must exercise reasonable diligence accordingly (Ross, at pp. 10-11).

[158] In this case, Mr. Wilson asked to speak to a specific lawyer. However, the name that he gave the police was incorrect. Officer Khan made reasonable efforts to locate Mr. Wilson’s counsel. He conducted internet searches and searched internal police documents. Ultimately, Mr. Wilson agreed to speak to duty counsel and did so. He expressed no dissatisfaction with the consultation with duty counsel. I have concluded that the failure to locate Mr. Abbey was not a violation of Mr. Wilson’s s. 10(b) right to counsel of choice.

8. It is conceded that Shamaree Wilson’s s. 9 right to be free from arbitrary detention was breached when the police failed to take him before a Justice of the Peace within 24 hours of his arrest. Should the evidence of his statement, the gunshot residue test and his shoes be excluded?

[159] Mr. Wilson applies for the exclusion of his statement at the police station and for the exclusion of his shoes and the results of the gunshot residue testing under ss. 24(1) and 24(2) of the Charter. He does so on the grounds that he was arbitrarily detained when the police failed to bring him before a Justice of the Peace within 24 hours as required by s. 503 of the Criminal Code.

[160] As noted above, the Crown concedes the s. 9 violation but argues that the evidence should not be excluded under ss. 24(1) or 24(2) in light of the relatively minor nature of the breach, the absence of any prejudice to the accused and the good faith of the officers. The Crown’s position is that the exclusion of the evidence would be a disproportionate response to the violation.

Statement

[161] For the same reasons I articulated above [paragraphs 98 to 124] with respect to Mr. Mendez, I have concluded that Mr. Wilson has met the onus of showing, on a balance of probabilities, that the evidence of his statement at the police station must be excluded.

[162] One difference between the statement of Mr. Wilson and that of Mr. Mendez is that it would be led as part of the Crown’s case as post-offence conduct consistent with guilt. Nevertheless it is not central to the Crown’s case and does not significantly change the balancing exercise.

Gunshot and Footwear Evidence

[163] I find that the evidence of the gunshot residue and footwear should not be excluded, nor should the evidence of his utterances at 2 Coltman Crescent prior to his arrest. There is an insufficient temporal, causal or contextual nexus between the breach and the obtaining of this evidence to conclude that the evidence was obtained in a manner that infringed or denied Mr. Wilson’s s. 9 rights. While the police kept the two accused beyond the time that they knew bail court was available in order to obtain the later statements, the earlier utterances, the gunshot residue and footwear evidence were obtained with no impact on the s. 9 rights of Mr. Wilson.

9. Should the evidence of the Gunshot Residue and Footwear Impression experts be excluded because the probative value of the evidence is outweighed by the prejudicial effect?

[164] Counsel for Mr. Wilson argued that the evidence of Mr. Smissen and of Dr. Gerrard should be excluded either because it is not relevant or because its probative value is outweighed by its prejudicial effect.

[165] In R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at para. 17, the Supreme Court of Canada described the four conditions that must be established for expert evidence to be admissible:

1. relevance;

2. necessity in assisting the trier of fact;

3. the absence of any exclusionary rule; and,

4. a properly qualified expert.

[166] Evidence that meets the four conditions may still be excluded if its probative value is outweighed by its prejudicial effect.

[167] The evidence in this case is relevant. While not determinative, the evidence that the shoes of the two accused were consistent with having made the footwear impressions at 4 Coltman is evidence that tends to prove that the two men were in the vicinity of the recycle bin where the gun was found. The evidence of the particles of gunshot residue is also relevant to the issue of the contact with the gun.

[168] The primary argument of the Applicant is that the prejudicial effect of the evidence outweighs its probative value.

[169] In R. v. Abbey, 2009 ONCA 624, [2009] O.J. No. 3534, at para. 119, Doherty J.A. held that in examining the probative value of the evidence its reliability must be assessed. He described some of the factors to be considered in determining the probative value of expert evidence. While these factors were related to non-scientific opinions, they are relevant to the evidence in this case. The factors include the following:

1. To what extent is the field in which the opinion is offered a recognized discipline, profession or area of specialized training?

2. To what extent is the work within that field subject to quality assurance measures and appropriate independent review by others in the field?

3. What are the particular expert’s qualifications within that discipline, profession or area of specialized training?

4. To the extent that the opinion rests on data accumulated through various means such as interviews, is the data accurately recorded, stored and available?

5. To what extent are the reasoning processes underlying the opinion and the methods used to gather the relevant information clearly explained by the witness and susceptible to critical examination by a jury?

6. To what extent has the expert arrived at his or her opinion using methodologies accepted by those working in the particular field in which the opinion is advanced?

7. To what extent do the accepted methodologies promote and enhance the reliability of the information gathered and relied on by the expert?

8. To what extent has the witness, in advancing the opinion, honoured the boundaries and limits of the discipline from which his or her expertise arises?

9. To what extent is the proffered opinion based on data and other information gathered independently of the specific case or, more broadly, the litigation process?

[170] The cost or prejudice side of the analysis will involve an assessment of the risks of the evidence, including the “consumption of time, prejudice, and confusion.” Doherty J.A. in Abbey, at para. 90, identified one of the significant risks as being the danger that the jury will be unable to make an effective and critical assessment of the evidence: “The complexity of the material underlying the opinion, the expert’s impressive credentials, the impenetrable jargon in which the opinion is wrapped and the cross-examiner’s inability to expose the opinion’s shortcomings may prevent an effective evaluation of the evidence by the jury. There is a risk that a jury faced with a well-presented firm opinion may abdicate its fact-finding role on the understandable assumption that a person labeled an expert by the judge knows more about his or her area of expertise than do the individual members of the jury.”

[171] It has not been argued that the expert evidence of gunshot residue or footwear impressions lacks probative value because of the methodology, quality assurance or qualifications of the experts. The argument of the applicant has focused on the limitations on the opinions. There are obvious limitations on the expert evidence in this case.

[172] The footwear evidence is not determinative of identity. The footwear impressions did not have accidental or wear characteristics that could be connected to the footwear of the two accused. The expert did not opine that the shoes of the accused made the impressions but merely that they could not be excluded. The jury is fully capable of understanding the opinion and its limits. As Doherty J.A. observed in R. v. Hall, at para. 32, in relation to expert footwear impression evidence:

No doubt, there is a risk that a jury will cede its fact-finding function to an expert. The extent of this risk depends in large measure on the nature of the expert evidence. Sometimes the basis upon which an expert advances an opinion is very difficult for a lay person to critically analyze. That is not the situation in this case. The basis for this expert's opinion was capable of evaluation by the jury. They could examine the photographs and charts and independently consider whether the similarities identified by the expert were in fact similarities. This was not the kind of expert evidence which carries with it an aura of ‘mystic infallibility.’

[173] The gunshot residue evidence similarly has limitations. There is a risk that gunshot residue can be deposited through contamination. Even without contamination, the presence of gunshot residue can be due to actually firing a gun, being near a gun when it is fired, handling a gun after it is fired or handling or contacting some other object that has gunshot residue on it.

[174] The two accused men were in contact with police and in the back of police cruisers. They were in interview rooms at the police station. There is a possibility of contamination from these areas. Again, the expert concedes that contamination is a risk and that this is a limitation on the opinion. The evidence is not complex in that regard and the jury is fully capable of understanding and weighing the evidence.

[175] In my view, the probative value of the evidence outweighs any minimal risk of prejudice. This is a circumstantial case. The connection of the two men to the murder weapon is central to the determination of identity. There is a connection between the location where the footprints and gun were found and the accused without the expert evidence. Both men were found at the residence and had arrived shortly after the shooting. The evidence must be assessed by the jury in the context of all of the other evidence. In that context it has probative value that outweighs any prejudicial effect. The risk of misuse by the jury can be addressed through a proper instruction to the jury on the use of the evidence and its limitations.

Conclusion

[176] I therefore found that the statements of both Mr. Mendez and Mr. Wilson made at the police station must be excluded. The pre-arrest statements of Mr. Wilson are admissible as is the gunshot residue and footwear evidence.

M. Forestell J.

Released: January 22, 2013

COURT FILE NO.: 12-30000346-0000

DATE: 20140122

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

Jordan Mendez and

Shamaree Wilson

RULINGS ON PRETRIAL APPLICATIONS

M. Forestell J.

Released: January 22, 2014

[^1]: The Crown sought a ruling on the voluntariness of the statement of Mr. Mendez at the police station. The Crown did not intend to introduce the statement as part of its case but, if admissible, the Crown would use the statement to cross-examine Mr. Mendez should he testify. Mr. Mendez conceded voluntariness. Based on the concession by Mr. Mendez, the statement of Mr. Mendez was made voluntarily and would have been admissible absent a Charter breach.

[^2]: On agreement of all counsel, the testimony of Karen Charles at the preliminary inquiry was filed as part of the record on this application.

[^3]: In addition to his testimony about the arrest of Mr. Wilson, P.C. Pitcher also gave evidence about seizing and examining Mr. Wilson’s phone. This evidence had ultimately no bearing on the issues in this application, but impacted on the general credibility of this officer. P.C. Pitcher testified that he examined the phone of Mr. Wilson at the police station. He testified that he believed that there were inculpatory text messages on the phone. When he met with the Crown Attorneys before giving his evidence on the voir dire he told the Crowns, sometime before 10:00 a.m., that he did not put this in his notes because he was told not to do so by P.C. Frederick. This was disclosed to the defence. P.C. Pitcher, at about 12:30 p.m. the same day, approached the officer in charge of the case and told her that Frederick had not told him not to put that in his notes. In his testimony he denied any recollection of telling the Crown Attorneys that Frederick had told him not to put the reference to the phone in his notes.

It is clear that P.C. Pitcher either lied to the Crowns in his meeting before court when he said that Frederick told him not to make reference to his examination of the phone or that he lied in court when he said that Frederick did not do so. It is also not at all credible that, within hours of his conversation with the Crowns, P.C. Pitcher had no memory of the questions and answers. This is particularly incredible because he testified that he called a colleague to speak to him about what was occurring. This was a meeting that caused P.C. Pitcher to be concerned, to call a colleague for advice and to approach the officer in charge to tell her that Frederick did not give him the impugned advice.

As I indicated, the issues in this case are not affected by the lies told by P.C. Pitcher. His role in the arrest and detention of Mr. Wilson was minimal. However, his conduct is extremely troubling and I mention it for that reason.

[^4]: I will address separately the admitted s. 9 violation by failing to take him before a Justice of the Peace.

[^5]: R. v. Warner (1994), 1994 CanLII 842 (ON CA), 21 O.R. (3d) 136 (C.A.).

[^6]: See paragraphs 125 to 137 above re detention.