ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(P)339/13
DATE: 2014-09-17
B E T W E E N:
Her Majesty the Queen
Mark Poland, for the Crown
- and -
Marlon Nurse and Darryl Plummer
Enzo Battagaglia, Counsel for Mr. Nurse
Margaret Bojanowska and Kate Oja, Counsel for Mr. Plummer
REASONS FOR RULING (ADMISSIBILITY OF MARLON NURSE’S STATEMENTS) and (VALIDITY OF MARLON NURSE’S ARREST)
Coroza J.:
A. Background
[1] The accused, Marlon Nurse and Darryl Plummer, were charged that, on or about November 10, 2011, they killed Devinder Kumar and did thereby commit first degree murder. A jury found the accused guilty on June 26, 2014.
[2] There are two issues in this pre-trial application: (i) the admissibility of statements made by Mr. Nurse to police officers on November 7, 2011 and November 10, 2011; and (ii) the validity of Mr. Nurse’s arrest on November 10, 2011.
[3] Each of the parties placed before the court an extensive application record. These records were supplemented by the testimony of a number of police officers involved in the arrest of both accused.
[4] The parties agreed to conduct a “blended voir dire” into these issues. Counsel were satisfied that I could hear the evidence called by the Crown and I could rely on the evidence to determine each pre-trial application brought by the accused separately, having regard to the different onus and issues in each application.
[5] These are the written reasons for my decision, given orally on March 10, 2014, admitting Mr. Nurse’s statements at trial and dismissing Mr. Nurse’s claim that he was arrested without reasonable and probable grounds.
B. Facts Relevant to the Pre-Trial Application
The Stabbing
[6] Mr. Kumar died on the side of the Gore Road in Caledon after being stabbed at least 29 times. His neck was almost severed from his body.
[7] The police were notified that a male was lying on the Gore road and were dispatched to the scene at about 11:29 a.m.
[8] Mr. Nurse lived on the Gore Road. Mr. Kumar was found lying on the roadway adjacent to this house. When the police arrived, Mr. Nurse was at the scene with other bystanders.
The Crime Scene Statements
[9] Mr. Nurse identified Mr. Kumar as his friend and told the police that Mr. Kumar had been dumped out of a car containing three men. He subsequently told the police that a black male with dreadlocks or cornrows had chased and stabbed Mr. Kumar and that the male ran south through the houses. Mr. Nurse had chased this male but did not catch him. Mr. Nurse eventually told other officers that Mr. Kumar was his landlord and friend and that he had come by his home to collect rent. He also told the police that his friend “Rick” was at his house that morning but had gone missing after chasing a dog.
[10] The police directed Mr. Nurse and other bystanders to stay at the crime scene because they were witnesses. Two officers were directed to separate Mr. Nurse from the other bystanders. Eventually, the police spoke to the bystanders about what they had observed.
The KGB Statement
[11] Mr. Nurse was asked to provide a video witness statement by Cst. Stone who was one of the lead investigators. When she first arrived, Cst. Stone was told that Mr. Nurse was a witness and she asked Mr. Nurse to take her on a “walk through” of the crime scene and his pursuit of the stabber. Cst. Stone testified that after the walk through she asked Mr. Nurse if he was willing to come to the station to provide a video statement and he agreed. Mr. Nurse then accompanied Cst. Stone and Detective Mullan to the police station and provided a cautioned “KGB” video statement to Cst. Stone between 1:27 p.m. and 2:44 p.m.
[12] Cst. Stone testified that at the end of this statement she was very suspicious about Mr. Nurse’s story but that she did not have reasonable and probable grounds to arrest him for murder. At the conclusion of her interview, the recording equipment was turned off and Cst. Stone was directed by her superiors to attend an investigative briefing. She then left Mr. Nurse in the company of Detective Mullan.
[13] Detective Mullan had observed Cst. Stone’s interview and was suspicious that Mr. Nurse was covering up for his friend Rick. He spoke to Mr. Nurse and as a result of their interaction he advised a superior officer at about 5:00 p.m. that he believed that Mr. Nurse had “set up” a robbery. He was directed by his superior to avoid talking to Mr. Nurse.
[14] At 6:08 p.m. the video in the interview room was turned back on because Mr. Nurse had asked to make another statement. Mr. Nurse was then formally arrested at 6:38 p.m. on video.
The Post Arrest Statements
[15] Once Mr. Nurse was arrested, he was immediately provided his right to counsel and cautioned. He spoke to counsel from 7:31 p.m. to 7:41 p.m. and was interviewed by Detective Mullan from 7:42 p.m. until 9:06 p.m.
[16] At the outset of the interview, Detective Mullan confirmed with Mr. Nurse that he understood his right to silence and that he had spoken to a lawyer. I am satisfied that once he was arrested, the police complied with their duties and respected Mr. Nurse’s rights under s.10(b) of the Charter.
[17] Mr. Nurse was interviewed a second time by Detective Mullan between 2:53 a.m. and 3:25 a.m. on November 11, 2011. Detective Mullan again confirmed the right to counsel and cautioned Mr. Nurse.
The November 7 “Pay2Day Incident”
[18] A few days before the murder, on November 7, 2011, Mr. Nurse accompanied Mr. Plummer to the Pay2Day cheque cashing store in Brampton. The clerk of the store suspected Mr. Plummer was trying to cash a fraudulent cheque and called the police. Two Peel Regional Police officers arrived and arrested Mr. Plummer. Mr. Nurse was also investigated but not charged with an offence. It is alleged that Mr. Nurse made a number of statements to the police.
C. Mr. Nurse’s Statements are Voluntary
[19] The Crown seeks a ruling that the following statements are voluntary:
statements made by Mr. Nurse made to police officers at the Gore Road crime scene on November 10, 2011 (these statements were made to Cst. Mitchell, Cst. Bucsis, Cst. Flores, Sgt. Kinapen, Cst. Pelan, Cst. Stone, and Detective Mullan);
the “KGB” statement provided to Cst. Stone prior to his arrest;
the post-arrest video statements provided to Detective Mullan; and
statements made by Mr. Nurse to Peel Regional Police officers on November 7, 2011.
[20] To succeed on the application, the Crown must demonstrate that Mr. Nurse provided these statements with an operating mind and free from any threats, promises or oppression. I am satisfied that all of Mr. Nurse’s statements are voluntary. I say this for several reasons.
[21] First, there is absolutely no evidence that Mr. Nurse did not have an operating mind when he made any statements to police officers on November 7 or November 10. I am satisfied that when he spoke to any police officers he understood what he was saying and what he was doing.
[22] Second, there is no evidence that the police improperly used threats, promises, or created an atmosphere of oppression on November 7 or November 10 to induce Mr. Nurse to speak.
[23] On November 7 the police were investigating Mr. Plummer and Mr. Nurse was briefly questioned by Cst. Lyall. As I will explain below, this interaction cannot be characterized as a “detention” for the purposes of the Charter. The interaction between Mr. Nurse and this officer was friendly and ended when Mr. Nurse was given an empty exhibit bag for his personal use. This exhibit bag was later seized by investigators during the murder investigation.
[24] On November 10, the police officers who attended on the scene were faced with a horrific and chaotic scene. I accept that the officers’ primary goal was to try and save Mr. Kumar and not to question witnesses. During the effort to save Mr. Kumar, the officers quite properly asked the bystanders (including Mr. Nurse) what had happened because the dispatch information they received was not complete. None of the officers made any threats or promises to induce Mr. Nurse to speak to them at the crime scene.
[25] I am satisfied that Mr. Nurse volunteered information to the officers by initially approaching Cst. Bucsis and Cst. Mitchell and telling the officers that he knew Mr. Kumar and that three males had dumped him from a car. This information was broadcast over the air. I am also satisfied that Mr. Nurse told Cst. Mitchell that a male with black dreadlocks had stabbed Mr. Kumar and was running south on the Gore Road. Again, all of this information was broadcast over the air by Cst. Mitchell. While Mr. Nurse challenges the accuracy of the alleged statements, this is not an issue of admissibility but weight. After providing this information to the officers, Mr. Nurse was treated as a witness by all of the officers at the crime scene and he was not treated as a suspect or a person of interest.
[26] I have also carefully reviewed the video of Mr. Nurse’s statement to Cst. Stone. The overall tenor of this interview is consistent with the questioning of a witness to a crime. Mr. Nurse appears relaxed and can be seen to being using his Blackberry device during the interview. I accept the evidence of Cst. Stone that it is only after this interview had concluded that her suspicions were aroused and that she did not try and persuade Mr. Nurse to provide incriminating evidence. Overall, the entire interview that she conducted was non-confrontational.
[27] With respect to the two post-arrest statements provided to Detective Mullan, there is no evidence that he threatened or made any promises to Mr. Nurse to provide a statement. These post-arrest statements are videotaped. The interviews are non-confrontational.
[28] I recognize that the interaction between Mr. Nurse and Detective Mullan that preceded these two post-arrest statements (between 2:44 p.m. (end of Sgt. Stone’s interview) and 6:08 p.m.) is not recorded. It would have been preferable to record Mr. Nurse’s entire interaction with the police (See R. v. Moore-McFarlane (2001), 2001 6363 (ON CA), 56 O.R. (3d) 737 (C.A.))
[29] In Moore-McFarlane, the Court of Appeal was considering the admissibility of a confession of an accused person that was neither video nor audio recorded. Charron J.A., as she then was, held at paragraph 65, “where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect.”
[30] In this case, I am satisfied that Detective Mullan did not deliberately set out to interrogate Mr. Nurse without recording the session. On the contrary, the evidence is that he turned on the video tape at 6:08 p.m. because Mr. Nurse wanted to provide another statement. However, there is no evidence that he set out to interrogate him about the incident prior to that. I accept that he was told to avoid speaking to Mr. Nurse.
[31] Furthermore, there is no suggestion of threat, inducement, oppression, or lack of an operating mind during this time period.
[32] Mr. Nurse’s interactions with the police on November 7 and 10, 2011 were voluntary.
D. Mr. Nurse’s Right to Counsel was Violated
[33] Mr. Battigaglia argues that there was a violation of Mr. Nurse’s right to counsel on November 7, 2011 and on November 10, 2011 when the police directed him to stay at the scene.
[34] I accept that there was a violation of Mr. Nurse’s right to counsel. However, I do not accept that this violation occurred on November 7 or at the crime scene on November 10. I find that the violation occurred when Mr. Nurse was with Detective Mullan in the interview room at the police station at around 6:08 p.m.
[35] The right to counsel is triggered when a suspect is detained or arrested.
[36] 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. Not every interaction between the police and members of the public, even for investigative purposes, constitutes a “detention” within the meaning of the Charter. Detention requires a significant deprivation of liberty. Police officers are permitted and, in some cases, expected to question members of the public when responding to calls.
[37] Determining whether police have crossed the line between permissible general questioning and focussed interrogation is not easy. All factors must be considered. These factors can be summarized as follows:
The circumstances giving rise to the encounter;
The nature of the police conduct (language used, use of physical contact, the place where the interaction occurred, duration of the encounter);
The particular characteristics or circumstances of the individual (including age, physical stature, minority status, level of sophistication) (See R. v. Suberu 2009 SCC 33, [2009] 2 SCR 460 at para. 25)
[38] Mr. Battigaglia submits that on November 7, Cst. Lyall detained Mr. Nurse when she spoke to him outside of the Pay2Day store. He also submits that Cst. Bucsis detained Mr. Nurse when he directed Mr. Nurse to remain at the crime scene on November 10 and that Mr. Nurse felt that he could not walk away from the police from that moment forward.
[39] The onus is on Mr. Nurse to show that he was deprived of the liberty of choice on each of these occasions. Mr. Nurse did not testify on this application. I recognize that the failure to testify is not fatal, but I am mindful that an assertion that the police conduct resulted in a significant deprivation of liberty has to be supported by evidence.
[40] After carefully reviewing the evidence, I find Mr. Battigaglia’s argument to be unpersuasive. A realistic appraisal of the entire interaction between Mr. Nurse and the police officers on November 7 and at the crime scene on November 10, leads me to conclude that he was not detained within the meaning of the Charter.
The November 7 “Pay2Day Incident”
[41] On November 7, 2011 there is no evidence that Mr. Nurse was physically or psychologically restrained. When Cst. Paschalis first arrived at the store, he immediately approached Mr. Plummer and began his investigation. Cst. Paschalis had very little contact with Mr. Nurse. Cst. Lyall only approached Mr. Nurse because the clerk of the store believed that Mr. Nurse was with Mr. Plummer and pointed him out to her. As I stated earlier, their interaction ended with the officer providing Mr. Nurse an empty exhibit bag for his film studies. What occurred between the two was nothing more than general conversation and Mr. Nurse was not the target of a focussed investigation.
[42] Taking into account the circumstances giving rise to the encounter and the nature of the police conduct in this case, a reasonable person in the same position of Mr. Nurse on November 7, 2011 would have felt free to walk away. He was not detained.
The Crime Scene of November 10, 2011
[43] I find that on November 10, 2011, it was Mr. Nurse who initiated contact with the officers as they were trying to save Mr. Kumar’s life. When Cst. Mitchell and Cst. Bucsis first arrived, I accept that their primary goal was to save Mr. Kumar. I also accept that this was a chaotic scene. The officers made general inquiries of the bystanders who were around (including Mr. Nurse). Asking bystanders “what happened” and “who did this” does not mean that the officers detained the bystanders or Mr. Nurse at the scene. On the contrary, Mr. Nurse approached the officers and identified Mr. Kumar as his buddy “Dev” and told the police that he was dumped from a car and that a male with dreadlocks had stabbed him. The subsequent direction by an officer to remain at the scene was not detention for a focussed interrogation but a direction to a witness to remain at the scene so that the police could follow up with the information that he had volunteered. At this point, Mr. Nurse did not require a caution or information about the right to counsel.
[44] I also find that Cst. Pelan and Cst. Flores did not detain Mr. Nurse for Charter purposes. I accept that these officers were tasked with ensuring that Mr. Nurse did not speak to other bystanders because the officers were worried about possible “tainting”. This decision was a reasonable one. Indeed, Cst. Pelan’s evidence is that Mr. Nurse appeared emotional and shocked and Cst. Pelan was trying to comfort him.
[45] I also note that at no time was Mr. Nurse placed in handcuffs, touched or restrained when he was present at the crime scene.
The KGB Statement
[46] Although Cst. Stone could not provide the exact wording of her request to Mr. Nurse to come to the station, I accept that she asked him and Mr. Nurse volunteered to come to the station. Although he was not told that he had a choice, I find that Mr. Nurse would not have acted any differently if he had been told that he had a choice. I accept that he agreed to go to the station because it is entirely consistent with his initial contact with the officers at the crime scene. Mr. Nurse made a concerted effort to speak to the police and his statements led them to believe that he was a material eyewitness but not involved in the crime.
[47] The decision to attend at the police station to capture a video recording was a reasonable one. I am not persuaded that Cst. Stone should have audiotaped the interview at the crime scene. Cst. Stone testified she did not have any audio recording equipment with her and I do not find that this was a deliberate attempt on her part to get Mr. Nurse to the police station to interrogate him.
[48] Although Mr. Nurse was placed in a police car, he was not restrained or searched before he went into the unmarked cruiser and was permitted to keep his Blackberry. Indeed, there are a number of times during the interview where Mr. Nurse can be seen using his phone. This interview cannot be characterized as an interrogation. In my view, the entire interaction is more fairly characterized as the general questioning of a witness to a serious crime.
Detective Mullan Detains Mr. Nurse
[49] I do not accept the Crown’s argument that Mr. Nurse was not detained until 6:38 p.m. when he was arrested by Cst. Tardif. In my view, Mr. Nurse was detained at an earlier point. I find that the detention crystallized at around 6:08 p.m.
[50] Once Cst. Stone finished her interview at 2:44 p.m. she was summoned to an investigative meeting with her superiors. The camera was turned off and she left Mr. Nurse in the interview room and in the company of Detective Mullan.
[51] The camera was not turned back on until 6:08 p.m. because Mr. Nurse had requested that he be given the opportunity to provide another statement to the police.
[52] As I stated earlier there is no record of the interaction between Mr. Nurse and Detective Mullan between 2:44 p.m. and 6:08 p.m. Detective Mullan described this period as “wasting time” and that Mr. Nurse was in the room the entire time. At about 4:29 p.m. a superior officer asked Mr. Nurse if he would provide his consent to the police to seize his clothing. Mr. Nurse agreed. This officer told him he would have to sign a consent but the officer never came back.
[53] At 5:00 p.m. Detective Mullan advised Sgt. Wight that he believed that Mr. Nurse was hiding something and there was more to the story. However, he was told by his superiors to avoid talking about the incident.
[54] At about 6:08 p.m. the camera is turned on and Mr. Nurse states: “So we can talk some more?” Shortly after making that remark Mr. Nurse then tells Detective Mullan: “Like what I feel like, I really to want to just, I honestly, I just want to talk”.
[55] At one point, Mr. Nurse points out to Detective Mullan that if he left right now he could see his girlfriend and daughter. Detective Mullan agrees and Mr. Nurse points out he could speak to the police at another time. Detective Mullan then responds:
Well, that’s up to you. Um but it’s a long walk home from here, that means I’d have to call you a cab, and uh before you left, I’d have to make sure from the boss, are we finished, and don’t want to talk to Marlon anymore. (Emphasis added)
[56] In my view, it is at this point that Mr. Nurse was detained. Mr. Nurse was not explicitly told that he could leave and his response to Mr. Nurse’s question would have led a reasonable person in Mr. Nurse’s shoes to conclude that he was not free to leave.
[57] Once he made this remark, Mr. Nurse was not formally given his right to counsel and cautioned. He had been in the room for about three hours, without being told what was going on except that there was an investigative meeting. He had spoken to Sgt. Stone prior to this and although he was asking to provide another statement, I think it is reasonable to say that Detective Mullan did not view him as a witness but a suspect. Indeed, he had informed his superior officers at 5:00 p.m. that he believed that Mr. Nurse was a suspect.
[58] Mr. Nurse’s detention “crystallized” just after 6:08 p.m. and he ought to have been given his right to counsel and caution immediately. This did not occur until his arrest at 6:38 p.m. and the evidence shows that Mr. Nurse was immediately informed of his right to counsel upon arrest and provided his cautions. He was also put in touch with counsel and Mr. Nurse exercised the right.
E. SECTION 24(2)
[59] Section 24(2) of the Charter places the onus on Mr. Nurse to demonstrate that the admission of unlawfully obtained evidence would bring the administration of justice into disrepute. The test for s. 24(2) is set out in the decision of the Supreme Court of Canada in R. v. Grant 2009 SCC 32, which sets out a three-part test.
[60] The defence characterizes the nature of the breach as constituting a reckless and deliberate disregard for Mr. Nurse’s Charter rights. I do not accept that there was a continuing breach of Mr. Nurse’s rights that began on November 7. On my findings there has been one breach of s. 10(b) that was committed by Detective Mullan on November 10.
[61] Even accepting that Detective Mullan would have been better-advised to have recorded his interactions with Mr. Nurse and advised him formally of his right to counsel when he detained him, there was nothing wilful or reckless about anything done by the officer. I do not find that the officer was acting in bad faith. At most, his failure to give Mr. Nurse his right to counsel was an error in judgment. I accept that all of the officers in this investigation did not deliberately delay or obstruct Mr. Nurse from leaving the station. Obviously, this was an intense, chaotic and urgent investigation because they had just discovered Mr. Kumar’s body lying across from Mr. Nurse’s home. The police were particularly interested in speaking to Mr. Nurse initially when he voluntarily provided statements that led the police to believe that he was a material witness. When his story did not appear to add up, I accept that Sgt. Stone was summoned to an investigative meeting and Mr. Nurse was left in the care of Detective Mullan. The police were still trying to piece together what they had learned from the officers and the civilians at the scene.
[62] Although Detective Mullan did not formally caution Mr. Nurse and inform him of his right to counsel, when he detained him, the officer did tell Mr. Nurse that if his status changed he had the right to speak to a lawyer who would tell him not to say anything and he had a right “not to talk”. It is obvious to me when I watch the video that Detective Mullan did not actively try to elicit Mr. Nurse to make a statement. Furthermore, Mr. Nurse did not really provide the police with any incriminating evidence or inculpatory statements during his interaction with Det. Mullan up to the point of arrest. I accept Det. Mullan’s evidence that he was trying to avoid talking to Mr. Nurse about the incident because he had been instructed by a superior officer to avoid speaking to him.
[63] Overall, I do not think that the Charter breach had a particularly significant impact on Mr. Nurse and I find that the relative lack of seriousness of the breach here favours admission of the post-arrest statements.
[64] With respect to the impact of the breach on Mr. Nurse, what was actually done is crucial to the analysis. The police were conducting the investigation into a homicide. Mr. Nurse voluntarily provided information and held himself out to be an eyewitness. He was not detained when he spoke to Cst. Stone. Even accepting that Mr. Nurse’s right to counsel was violated, there is no evidence that Detective Mullan actually elicited anything from Mr. Nurse and on my review of the video from 6:08 p.m. to 6:38 p.m., Detective Mullan’s behaviour is consistent with being told by his superiors to avoid speaking to Mr. Nurse.
[65] Section 10(b) violations implicate a detainee’s right to make a meaningful and informed choice whether to speak, the related right to silence, and, most fundamentally, the protection against testimonial self-incrimination. As the majority of the Supreme Court noted in Grant, at para. 95, these rights protect the individual’s liberty and autonomy and, so, violation of these fundamental rights tends to militate in favour of exclusion. However, the Grant majority also recognized that some circumstances may attenuate the impact of such a Charter breach, for example, “if an individual is clearly informed of his or her choice to speak to the police, but compliance with s. 10(b) was technically defective at either the informational or implementational stage, the impact on the liberty and autonomy interest of the accused in making an informed choice may be reduced;” at para. 96.
[66] In this case, Mr. Nurse was informally told of his right to counsel and his choice to speak to the police by Detective Mullan prior to his arrest. He was informed that he had a choice to speak to counsel or the police. In light of the fact that there was no attempt to elicit information from him during this time period, I find that the s. 10(b) violation was a technical breach and it had no impact on him.
[67] On the third branch of the Grant test I must consider society’s interest in a trial of this case on its merits and the impact of exclusion or admission on the long-term administration of justice. The exclusion of the statements would not halt the prosecution. However, at the same time, the statements form an important part of the Crown’s case on a very serious charge. Bearing in mind that that the focus must always be on the long-term effect of admission on the administration of justice, it seems to me that the nature of the breach here is on the low end of the scale. The real-life impact on Mr. Nurse’s Charter-protected interests is non-existent and, on the facts of this case, excluding statement on a serious offence would bring the administration of justice into disrepute.
[68] I am satisfied that the post-arrest statements were fully voluntary and not coerced in any way. There is much to be said about the Crown’s argument that Mr. Nurse made an informed and deliberate choice to attempt to lead the officers on a false narrative in the hopes of escaping scrutiny. The Charter breach had no impact on his decision to speak to Detective Mullan after his arrest. The s. 10(b) violation did not render the statements unreliable in this case.
Balancing
[69] Balancing the three factors, Mr. Nurse’s application to exclude the statements fails.
[70] I find that all three factors militate in favour of admission of the statements and, accordingly, I find that admission of the statements would not bring the administration of justice into disrepute.
F. Mr. Nurse’s Challenge to his Arrest
[71] Mr. Nurse also challenges his arrest for first degree murder by Cst. Tardiff on November 10. An investigative meeting was held at the Caledon East Detachment. This meeting commenced at 5:30 p.m. and was attended by a number of police officers. The purpose of the meeting was to provide information to the investigative team and to discuss all that had been discovered at that point of the investigation.
[72] Cst. Tardiff was at this meeting. However, he was also one of the first officers on scene arriving at the Gore Road at about 12:03 p.m.
[73] At the conclusion of the meeting, Inspector Thompson, who led the meeting, instructed Cst. Tardiff to arrest Mr. Nurse who was in an interview room with Detective Mullan. Cst. Tardiff arrested Mr. Nurse on video at 6:38 p.m.
[74] Under the Criminal Code a police officer may arrest without warrant a person whom, “on reasonable grounds, he believes has committed or is about to commit an indictable offence.” The reasonable and probable grounds standard has both subjective and objective components. The arresting officer must personally believe that he or she possesses the required grounds to arrest, those grounds must be objectively established, in the sense that a reasonable person standing in the shoes of the officer would believe that there were reasonable and probable grounds to make an arrest. The standard is reasonable probability, which is something less than proof beyond a reasonable doubt but something more substantial than reasonable suspicion.
[75] Cst. Tardiff arrested Mr. Nurse at 6:38 p.m. because he was directed to at the end of the investigative meeting. The minutes of the meeting have been filed as Exhibit H. A number of officers attended this meeting.
[76] After carefully listening and reviewing his evidence, I have confidence in his evidence. Cst. Tardiff did not exaggerate or overstate and he was fair in cross examination. In my view, Cst. Tardiff clearly provided subjective and objective grounds for arresting Mr. Nurse in the interview room.
[77] From my review of the evidence, Cst. Tardiff had the following grounds to arrest Mr. Nurse:
a. he was entitled to conclude that Mr. Nurse was at the scene of the crime;
b. he was entitled to conclude that Mr. Kumar had attended Mr. Nurse’s residence at the same time as Mr. Plummer;
c. Mr. Nurse claimed that he saw the murder weapon- a “bent blade”;
d. he was entitled to conclude that Mr. Nurse’s KGB statement was problematic. For example, he was entitled to conclude that Mr. Nurse was not being forthright in his KGB statement, when describing a black male wearing a white hoodie as the stabber but not his friend “Rick”. Based on the fact that Mr. Plummer was described wearing a white hoodie with a blood stained sleeve, he was entitled to conclude that Rick and Mr. Plummer were the same person but that Mr. Nurse was not being forthright about this;
e. he was entitled to conclude that there was an association between Mr. Plummer and Mr. Nurse because they had been involved in an incident on November 7;
f. although Mr. Nurse claimed that Mr. Kumar had collected $3600.00, no money had been found on Mr. Kumar or at the scene;
g. there was information that more than one black male was involved; there were two, possibly three, black males involved. Both had been seeing the area of the body going east to the wooded area.
h. one black male had been arrested at 12061 Gore. That left the police with one or two more suspects.
i. There was information that this was a robbery “gone wrong”.
[78] Grounds for belief are not to be individually and microscopically examined and accepted or rejected: it is the totality of the grounds, allowing for the strengths and weaknesses of the various components, that is important.
[79] I am satisfied after listening to his evidence and reviewing Exhibit H that in this situation of urgency Cst. Tardiff had the requisite grounds to make an arrest.
[80] After the investigative meeting, the police and Cst. Tardiff had to make a call and that call had to be made on less than exacting standards. I accept that the decision to arrest Mr. Nurse was made based on the fact that it had become evident to the police that Marlon Nurse was not just a material witness but significantly more involved.
[81] I do not agree that there is a gap in the Crown’s evidence notwithstanding that Inspector Thomson did not testify. A reasonable inference is that the investigative meeting provided both Inspector Thomson and Cst. Tardiff with the grounds for the arrest. The fact that Inspector Thomson instructed Cst. Tardiff to arrest Mr. Nurse after the meeting without briefing Cst. Tardiff as to his subjective grounds is not fatal. It is the conduct of Cst. Tardiff that must be assessed and I am satisfied that he had subjective grounds to arrest Mr. Nurse which were objectively reasonable. I am entitled to draw reasonable inferences from the evidence.
G. Summary
[82] The statements made by Mr. Nurse to Cst. Lyall and Cst. Paschalis on November 7, 2011, are voluntary and admissible at trial. Any evidence gathered by these officers is admissible.
[83] The statements made by Mr. Nurse to police officers at the crime scene on November 10, 2011, are voluntary and admissible at trial.
[84] The statements made by Mr. Nurse to Cst. Stone are voluntary and admissible.
[85] The statements made to Detective Mullan are voluntary.
[86] In my view, Mr. Nurse was detained prior to his arrest at 6:38 p.m. and I have found that the Detective did violate his s.10(b) rights by not providing him his right to counsel immediately. However, after applying the test set out by the Supreme Court of Canada in R. v. Grant I hold that the subsequent post-arrest statements provided to Detective Mullan are admissible.
[87] In my view, at the time of the arrest, Cst. Tardiff subjectively and objectively had reasonable and probable grounds to arrest Mr. Nurse for murder.
[88] Mr. Nurse’s application to exclude evidence seized incident to Mr. Nurse’s arrest is dismissed.
Coroza J.
Released: September 17, 2014
COURT FILE NO.: CRIMJ(P) 339/13
DATE: 2014-09-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and –
Marlon Nurse and Darryl Plummer
REASONS FOR RULING (ADMISSIBILITY OF MARLON NURSE’S STATEMENTS) and (VALIDITY OF MARLON NURSE’S ARREST)
Coroza, J.
Released: September 17, 2013