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

Accused

Margaret Bojanowska and Kate Oja, Counsel for Mr. Plummer

REASONS FOR RULING

(ADMISSIBILITY OF KNIFE)

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] Mr. Kumar was stabbed at least 29 times. He was found lying on the roadway adjacent to a house he rented out to Mr. Nurse. The Crown alleged that the murder weapon was a knife found in a creek that ran behind a house just south of the crime scene. The knife contained both Mr. Plummer’s DNA and Mr. Kumar’s blood.

[3] Mr. Plummer was arrested at gunpoint minutes after Mr. Kumar’s body was discovered. He was spotted about 300 meters from the crime scene walking south away from Mr. Kumar’s body. At the time of his arrest, he told police officers he threw the knife in the swamp behind the houses closer to the location of his arrest. He later told the police officers he threw the knife in some water when he was running through the bushes.

[4] The police discovered the knife in a creek just south of the location of Mr. Kumar’s body, later that afternoon at about 4:23 p.m.

[5] Mr. Plummer argues that these statements were obtained in violation of his s.10(a) and s.10(b) Charter rights and that the knife was discovered as a result of these statements. Accordingly, Mr. Plummer submits that the knife should be excluded as evidence derived from a violation of his rights.

[6] These are the written reasons for my decision dismissing Mr. Plummer’s application to exclude the knife from evidence.

[7] I agree with Mr. Plummer’s submission that his rights were violated by the police when they obtained certain statements from him. These statements are not admissible. I also agree with Mr. Plummer that the knife was obtained in a manner that infringed his rights. However, I am confident the knife would have been discovered by the police without the statements. Since the knife is very reliable evidence and was “independently discoverable,” the impact of the breach of Mr. Plummer’s rights is lessened and this is a factor that favours the admission of the knife into evidence.

B. Facts

The Discovery of Mr. Kumar

[8] At about 11:30 a.m. on November 10, 2011, Mr. Kumar was found lying on the roadway adjacent to 12131 Gore Road in Caledon. He had been stabbed at least 29 times. The police were dispatched to the scene and they responded quickly.

[9] Cst. Mitchell and Cst. Bucsis were the first officers to arrive at the scene. The officers saw Mr. Kumar covered in blood and still alive. However, Mr. Kumar’s abdomen had been eviscerated and his neck almost severed in half.

[10] The police who responded to this call found themselves in a chaotic and rapidly evolving situation. All police officers were provided with limited information.[^1] The limited information provided to the police over the broadcast included the following:

• Mr. Kumar was laying on the gravel shoulder on the Gore Road just North of Mayfield;

• two males had run away from Mr. Kumar across the roadway to the east;

• Mr. Kumar was bleeding profusely from the neck and was later described as having a “severed in half neck”;

• the two males who ran away were wearing dark clothing and were in their early twenties or late teens;

• a black male with dreadlocks was running southbound on the Gore Road around the houses of Mayfield;

• Mr. Kumar had multiple stab wounds.

Mr. Plummer’s Arrest

[11] Cst. Magee and Cst. Prodger were directed to patrol an area south of the crime scene and minutes after receiving the initial call, at about 11:38 a.m., the officers saw Mr. Plummer walking south on the Gore Road about 300 meters south of Mr. Kumar’s body. Mr. Plummer had burrs on his clothing and he matched the description of a male who the police were told was running southbound on the Gore Road.

[12] The officers arrested Mr. Plummer at gunpoint. During the arrest, the officers noted that Mr. Plummer was wearing a black latex glove and he was also bleeding from his hand.

[13] Mr. Plummer made a number of statements to Cst. Magee and Cst. Prodger following his arrest. The statements included telling the police that he had thrown the knife in the swamp behind an address closer to where he was arrested.

The Discovery of the Knife

[14] The statements from Mr. Plummer did not provide a precise location. The police called in a canine unit[^2] and the Emergency Response Team (ERT) to assist in the search for the weapon and evidence. A canine unit arrived shortly after the arrest of Mr. Plummer and the search manager for ERT, Cst. McGuire, arrived at 2:29 p.m.

[15] Cst. McGuire is an officer who has been a search manager since 2008. He has specialized training in conducting searches over terrain.

[16] Cst. McGuire arrived on the scene at 2:29 p.m. and he spoke to Detective Mergado at 12161 the Gore Road-closer to the site of Mr. Kumar’s body. Cst. McGuire was told that a man had been stabbed with a fixed blade kitchen style knife and that a male had been arrested and told the police that he had thrown the knife in the water. Cst. McGuire then directed Cst. Reavie, a police officer capable of using a metal detector in water, to attend at the crime scene.

[17] Cst. McGuire determined that the area of the search would start at the site of Mr. Kumar’s body to the north, the location of Mr. Plummer’s arrest to the south, the Gore Road to the west, and the creek that ran behind the houses on the east side of the Gore Road. He directed the canine officer who had been on scene to start at the north and work his way south to Mr. Plummer’s arrest, to pick-up a track. Cst. McGuire and other members of ERT started at the location of Mr. Plummer’s arrest and worked their way north to Mr. Kumar’s body.

[18] At about 2:54 p.m. Cst. McGuire received information that the canine dog had discovered a track of human scent running from slide marks on the side of a hill to the bush area behind a house just south of Mr. Kumar’s body. By this time, Cst. Reavie had arrived on scene and was specifically directed to the creek which was in the proximate area of the slide marks. Cst. Reavie searched the creek in this area and found the knife at 4:22 p.m.

C. Mr. Plummer’s Arguments

The First Statement Obtained by Cst. Magee Violated Mr. Plummer’s Charter Rights

[19] There are three duties that police officers are tasked with when they detain or arrest an accused. First, they must inform the detainee of the right to retain and instruct counsel immediately upon arrest. Second, if the detainee wants to invoke the right, they must provide a reasonable opportunity to do so. Finally, they must refrain from eliciting evidence until the detainee has had that reasonable opportunity.

[20] Mr. Plummer argues that the police also violated his s.10(a) Charter rights because he was not told the reason for his detention and arrest. I disagree. After listening to Cst. Prodger give evidence on this point, I am satisfied that he told Mr. Plummer that he was being arrested for assault causing bodily harm immediately after he was arrested at gunpoint. Although, Mr. Plummer points out that Cst. Prodger did not provide this evidence in a video interview shortly after the events, I do not find his argument persuasive. While it is true that Cst. Prodger did not mention that he told Mr. Plummer that he was arresting him for assault causing bodily harm in the interview, he did make a notation in his notebook that he specifically advised Mr. Plummer of the reason for the arrest. These notes were created closer in time to the event and Cst. Prodger recalled telling Mr. Plummer the reason for the arrest after relying on his notes. I accept his evidence.

[21] After he was arrested, Cst. Magee and Cst. Prodger treated Mr. Plummer’s bleeding hand at the scene. An ambulance was called and Mr. Plummer was eventually taken from the arrest scene to the hospital to receive further treatment for a severed tendon.

[22] When he was initially arrested, Cst. Magee asked Mr. Plummer “what happened?” and “where is the knife?” Mr. Plummer told the officers that he got into a fight with a “big Indian” and that he “threw the knife into the swamp behind the houses.” Following this exchange, Cst. Magee broadcast over the air that Mr. Plummer had told them that he discarded the knife closer to where he was arrested, as opposed to closer to the crime scene. Cst. Magee could not recall if this was as a result of a direct question or whether or not he had already obtained this information when he first arrested Mr. Plummer.

[23] After his arrest, Mr. Plummer was read his rights to counsel and cautioned for the assault charge. However, twenty minutes had elapsed since the time of arrest. When he was read his rights, Mr. Plummer confirmed that he understood his rights and he asked to speak to a lawyer.

[24] I agree with Mr. Plummer’s submission that these initial statements were obtained in violation of s.10(b) of the Charter. In my view, the statements were elicited from Mr. Plummer prior to his right to counsel and those rights were not provided to him immediately before arrest.

[25] Crown counsel argues that Cst. Magee and Cst. Prodger were entitled to immediately ask Mr. Plummer questions because they had to control the scene and were concerned for the safety of others. I accept that the officers looked after Mr. Plummer’s hand after they arrested him and this would have caused some delay in the reading of his rights. However, after considering all of the circumstances, I am not satisfied that officer safety or public safety concerns justified a delay of 20 minutes in reading the right to counsel and cautions. Nor can safety concerns be used as a justification for questioning Mr. Plummer prior to the reading of his right to counsel or cautions. I say this for the following reasons:

(i) the police officers had secured Mr. Plummer at gunpoint;

(ii) the officers patted down Mr. Plummer and he was not in possession of any weapons;

(iii) Mr. Plummer had been arrested alone and was not a direct threat to the officers; and

(iv) Mr. Plummer had been cooperative with the police.

The Second Statement Obtained by Cst. Flores Violated Mr. Plummer’s Charter Rights

[26] Cst. Flores of the Peel Regional Police arrived at the arrest scene at 11:39 a.m. The Peel Regional Police had also been dispatched to this call because they also patrolled the Gore Road. Cst. Flores did not have access to the OPP police transmissions and she was not aware of the information that had been provided to the OPP officers. When she arrived, she asked Mr. Plummer: “Where are you coming from?” “Where is the other male?” and “Were you the one who stabbed him?” Mr. Plummer responded to all of these questions. Cst. Flores acknowledged that at no time did she advise Mr. Plummer of his rights.

[27] I agree with Mr. Plummer that Cst. Flores violated his right to counsel when she interrogated him at the roadside. Cst. Flores inexplicably did not ask the OPP officers who were with Mr. Plummer for any direction. At the time she interrogated Mr. Plummer she did not inquire if he had been read his right to counsel. Of course by this time, Mr. Plummer had been arrested at gunpoint and he was in the control of the OPP officers.

The Ambulance and Hospital Statements Obtained by the Police Violated Mr. Plummer’s Charter Rights

[28] At about 12:18 p.m., Cst. Magee was told that Mr. Kumar had died. One minute later, Cst. Magee re-arrested Mr. Plummer for first degree murder while he was seated in the ambulance. Cst. Magee provided Mr. Plummer with his right to counsel a second time and another caution.

[29] The officers eventually took Mr. Plummer to hospital for treatment on his hand. However, just prior to leaving the scene, Detective Mullan gave Cst. Magee an audio recorder and told him that it should not be turned off. Accordingly, the entire interaction between Mr. Plummer and the police while in the ambulance and in the hospital is recorded.

[30] The audio recording reveals that at certain times the officers did not hold off questioning Mr. Plummer on the way to the hospital and while they were waiting in a hospital room. For the purposes of this ruling, the relevant exchange is the one that takes place between Cst. Magee and Mr. Plummer in the hospital room while he is awaiting treatment. Cst. Magee specifically asks Mr. Plummer if he knew the location of the knife. Mr. Plummer tells Cst. Magee that he threw the knife in the water when he was running through the bushes.

[31] Crown counsel concedes that Mr. Plummer’s s.10(b) rights were violated by Cst. Magee when he asked this question. By the time that Detective Mullan had given Cst. Magee the tape recorder, there were no officer or public safety concerns and the police had a duty to “hold off” from eliciting information from Mr. Plummer. I agree with this concession.

D. Would the Admission of the Knife bring the Administration of Justice into Disrepute?

[32] In order to obtain a remedy under s. 24(2) of the Charter, Mr. Plummer must satisfy me that that the impugned evidence was “obtained in a manner that infringed or denied” his Charter rights. There must be some relationship or connection between the violations that occurred here and the discovery of the knife. I also appreciate that a causal connection is not necessary and is not a requirement to trigger an analysis under s. 24(2).

[33] I disagree with the Crown that the knife was not obtained in a manner that infringed Mr. Plummer’s rights. It is unnecessary to establish a strict causal relationship between the breaches and the discovery of the knife. The required connection between the breach and the discovery of the knife may be “temporal, contextual, causal or a combination of the three”. (See: R. v. Plaha (2004), 2004 21043 (ON CA), 189 O.A.C. 376, at para. 45 and R. v. Wittwer, 2008 SCC 33, [2008] 2 SCR 235).

[34] I am satisfied that the connection is temporal, in the sense that the knife was found after Mr. Plummer’s statement to Cst. Magee that he threw the knife in the water. The connection between the statement and the discovery is also causal because Cst. McGuire conceded that he instructed his officers to search the edge of the water because he was provided with information that the knife had been thrown in the water. In my view, the discovery of the knife is sufficiently connected to the breaches committed by the officers prior to its discovery.

[35] Mr. Plummer submits that since the discovery of the knife is derived from his statements and that since the statements were elicited in violation of his rights, the knife should not be admitted. I disagree. The knife should only be excluded if Mr. Plummer establishes that the admission of it at trial would bring the administration of justice into disrepute. Mr. Plummer has not persuaded me that the test has been met.

[36] According to the Supreme Court of Canada decision in R. v. Grant, 2009 SCC 32, in determining whether or not the admission of evidence would bring the administration of justice into disrepute, a trial judge must analyze and balance the following three components:

a) The seriousness of the Charter-infringing state conduct;

b) The impact on the accused's Charter-protected interests; and

c) Society's interest in adjudication on the merits.

The Seriousness of the Charter-infringing State Conduct

[37] The focus under the first branch is preserving public confidence in the rule of law. The police conduct here may fall anywhere on a broad spectrum from the deliberate and egregious to the unintentional and minor.

[38] I accept Mr. Plummer’s argument that the police conduct here falls towards the more serious end of the spectrum. In particular, I find the conduct of Cst. Magee while he was in the hospital to be serious. Cst. Magee believed that he was free to question Mr. Plummer as long as he had read Mr. Plummer his right to counsel and caution, but was not delaying Mr. Plummer’s ability to call counsel. He explained that he could not implement Mr. Plummer’s right to call a lawyer at the scene or at the hospital because the police could not afford him privacy. In his view, as long as he was not intentionally delaying Mr. Plummer’s right to phone a lawyer, because it was impractical to do so, he was permitted to ask him questions. Cst. Magee also testified that he was specifically told to ask Mr. Plummer about the location of the knife by his superior Sgt. Kinapen. Sgt. Kinapen does not recall this conversation. I find that the conversation occurred.

[39] Mr. Plummer also points out that Cst. Flores interrogated him at the scene without turning her mind as to whether he had been given his rights. I agree with the submission that the conduct of Cst. Flores is serious. There was no explanation as to why she decided to speak to Mr. Plummer directly as opposed to requesting direction from Cst. Magee and Cst. Prodger.

[40] In considering the initial questioning by Cst. Magee during the gun point arrest, I accept that the officers were subjectively concerned about police and public safety because of the limited information in their possession prior to the arrest. Based on the transmissions from the dispatcher, it was reasonable for the police to believe that a weapon and an accomplice were still outstanding. However, objectively looked at, I do not accept that questioning Mr. Plummer was an appropriate way to alleviate these concerns when they had Mr. Plummer under control and no objective threat around them. I accept that controlling a crime scene is valid to the extent that it protects the police or the public or prevents destruction of evidence, but the police were not doing any of these things when they initially questioned Mr. Plummer.

[41] Overall, I consider the police conduct in this case seriously undermined Mr. Plummer’s right to counsel. I must disassociate myself from this conduct. This factor favours exclusion of the statements and the knife.

The Impact on the Accused's Charter-protected Interests

[42] Consideration of the impact of the breach on Mr. Plummer’s rights, "calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed."

[43] The breach to Mr. Plummer’s right to counsel resulted in the extraction of an incriminating statement. However, I must look at the extent to which the violation "actually undermined" Mr. Plummer’s protected interests.

[44] I agree with Mr. Plummer that a breach of the right to counsel followed by the giving of an incriminating statement is a very serious breach because it affects the right to silence.

[45] There is no question that Mr. Plummer had the right to keep his silence and not increase his jeopardy. Facilitating a call to a lawyer would have played a vital role to ensure that Mr. Plummer knew about the advantages and disadvantages of speaking to the police. A failure to hold off in their questioning undermined this right.

[46] However, I do agree with Crown counsel’s submission that even without any of Mr. Plummer’s statements, the police were going to search the creek and they would have discovered the knife. The Supreme Court of Canada in Grant has held that, if the derived evidence was independently discoverable, the impact of the breach on the accused is lessened and admission is more likely. (See: Grant, at para. 125).

[47] I am confident that the creek would have been searched even without any of Mr. Plummer’s statements.

[48] When the police arrived they were told that a couple of males had run away from Mr. Kumar. The police also knew that Mr. Kumar had been stabbed repeatedly because it would have been obvious to any officer attending at the scene. Marlon Nurse told the police that the suspect that has stabbed Mr. Kumar was running south through the houses of the Gore Road. I agree with Crown counsel that prior to Mr. Plummer’s arrest, the police knew that Mr. Kumar had been stabbed repeatedly by at least one knife or similar bladed instrument and that a suspect had run south of Mr. Kumar’s body. Minutes after this information had been provided to the police, Mr. Plummer was observed walking about 300 meters south of the crime scene. There was only a short duration of time that passed between the stabbing of Mr. Kumar and his arrest.

[49] I accept Cst. McGuire’s evidence that this was not a large area for an evidence search and he was quite comfortable with the management of this search. I have reviewed the photographs presented by Crown counsel of the area from the scene of Mr. Kumar’s body to the location of Mr. Plummer’s arrest. The area is well defined. It runs north (Mr. Kumar’s body) to south (Mr. Plummer’s arrest) and east (the creek) to west (the Gore Road). After looking at the photographs and listening to Cst. McGuire, I agree with the Crown that the area that the weapon could have been disposed was restricted by natural geography.

[50] I am not persuaded that the information from Detective Mergado narrowed down what the ERT team was looking for. Cst. McGuire disagreed with this proposition and he testified that anything that did not look like it belonged in the area was going to become suspect and the information he received from Det. Mergado about the nature of the knife would not have changed the method of search for the weapon.

[51] Cst. McGuire also testified that even though he was told the knife was in the water he did not necessarily believe this information because he had been on many searches where he was told that a weapon was in one location and found in another location. I accept his assertion that he was not convinced right from the start that the knife was in the water.

[52] Cst. McGuire was specifically asked if he would have conducted his search differently if he had not been told that the knife was in the water. I accept the following testimony:

The only thing that probably would’ve went differently is Officer Reavie wouldn’t have been requested until the following day if we hadn’t located the item. Canine would’ve still gotten priority at the north end. We would’ve started in the south end. The river, just from past experience, would’ve been an area of concern and at some point in time it would’ve been covered, not likely on the first night, but it would’ve been covered. [Emphasis added.]

[53] He was also asked what effect the canine track would have had on his decision to search the water if he had not been told that the knife was in the water:

Q. All right. And what if you had found the slide marks at the time that you found them, you hadn’t found a knife up to that point.

A. Correct.

Q. What would you have-what would you have done having found those slide marks in proximity to the creek and not having found the knife to that point?

A. I would’ve moved my search to that location as I did and I would’ve focused on that area.

Q. Okay. And if you hadn’t turned anything up in that immediate area, what-what would you have done?

A. The river would’ve been searched at that point.[^3]

[Emphasis added.]

[54] In cross-examination he testified that the information he received about the knife being thrown in the water, did not narrow the search area because he had initially set up the area from the river to the roadway.

[55] A canine dog led the police to a series of slide marks on the side of a hill in the area of the creek, south of Mr. Kumar’s body. I agree with the Crown that if they had not found the weapon on land in this specific area, the most obvious place to look would have been the creek adjacent to this area. I accept Cst. McGuire’s evidence without reservation that the police would have looked in the river in the area of these slide marks. The police also had the ability to conduct an underwater search using a metal detector. I am confident that they would have found the knife.

[56] I also accept that the knife was found fixed to the soil in the specific area of the creek. Cst. Reavie testified that he found the knife embedded in the soil at about a thirty degree angle. However, he was questioned about his prior testimony at the preliminary hearing because he had described the knife as floating in the water. I accept his evidence that he was simply mistaken and provided a confusing answer at the preliminary hearing. The deficiency in his preliminary hearing testimony does not cause me to have any questions or concerns about the overall veracity of his testimony. I accept that the blade was down in the soil and the handle was up when he reached down for the knife. He also described the water in this area as having a “slow flow”.

[57] I should make it clear that I was also left with great confidence in the evidence of Cst. McGuire. His testimony was fair and balanced. He did not overstate his position during cross-examination.

[58] I am satisfied that notwithstanding the fact that he was provided with information that was obtained in violation of Mr. Plummer’s rights, this information did not significantly change the method of search for the weapon. The police believed that Mr. Kumar had been stabbed by Mr. Plummer. Mr. Kumar had been stabbed mere minutes before they arrived. A canine unit was already on scene when Cst. McGuire arrived. That canine team obtained a track of human scent proximate to the creek. Cst. McGuire has testified that even without the statements he would have called for a search of the water at that point. The police were capable of calling in an officer to search the creek with a metal detector. An officer found the knife in the creek adjacent to the area of the slide marks after being directed by Cst. McGuire because of the canine track. On the evidence before me, this evidence was independently discoverable. All things considered, while it does not lead to automatic admission, discoverability attenuates the serious impact of the breach on Mr. Plummer’s rights. Overall, I find that this factor favours admission of the knife.

Society’s Interest in Adjudication on the Merits

[59] The public interest in an adjudication of criminal cases on their merits is the third consideration under the Grant test. This factor stresses that the search for truth is an important consideration, but is not determinative. The reliability of the evidence is a valid consideration; in this case a knife that contains the blood of Mr. Kumar and Mr. Plummer’s DNA, is very reliable. Finally, the offence involved here is the most serious in the Criminal Code. I appreciate and keep in the mind, that the seriousness of the offence as a consideration in Grant can “cut both ways.”

[60] The ultimate question under s. 24(2) of the Charter is, applying a long-term and prospective view is whether a “reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.”

[61] In this case, I have no doubt that a reasonable, informed person would consider the police conduct in this case at the scene, ambulance and hospital to be disconcerting. However, a reasonable, informed person would not, in my opinion, agree that the admission of the knife found in the creek at this trial would bring the administration of justice into disrepute. Indeed, the contrary would be true. According to Cst. McGuire, the water would have been searched even without information that was forwarded to him about the knife being thrown in the water. A dog led the police to some slide marks adjacent to the creek. Cst. McGuire testified that he would have searched the river at that point. When I balance all of the factors, I am not satisfied that Mr. Plummer has demonstrated, on a balance of probabilities, that the admission of a knife containing Mr. Plummer’s DNA and Mr. Kumar’s blood would bring the administration of justice into disrepute.

[62] I take a different view, however, with respect to the statements. In this respect, bearing in mind the seriousness of the s. 10(b) violations, I am satisfied that the administration of justice would suffer disrepute by admitting Mr. Plummer’s statements at the scene. The violations of s. 10(b) were flagrant and the police conduct cannot be condoned. The violations undermined Mr. Plummer’s right to silence at a time he was facing a very serious charge. Accordingly, I am satisfied that the statements made by Mr. Plummer at the scene are not admissible. The Crown did not seek to tender the statements in the ambulance or at the hospital.

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 KNIFE)

Coroza J.

Released: September 17, 2014

[^1]: The dispatch tapes of November 10, 2011 were filed. I have reviewed these tapes and the transcripts of the transmissions. There is a sense of urgency in the voices of each of the officers.

[^2]: On the radio transmissions, Sgt. Kinapen, the officer in charge at the scene, immediately calls for a canine unit at 11:34 a.m. once he heard over transmissions that Mr. Kumar’s neck was severed and Mr. Kumar was dumped from a car.

[^3]: Transcript, February 18, 2014, at page 22.