ONTARIO
SUPERIOR COURT OF JUSTICE
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
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 MR. PLUMMER’S STATEMENT
TO DETECTIVE MULLAN)
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 made a number of on-scene statements to police officers in response to questioning. However, when he initially made these statements he had not been advised of his right to counsel and given the appropriate cautions.
[4] Mr. Plummer was bleeding from his hand and was eventually taken to the hospital for medical treatment. Mr. Plummer made a number of statements in an ambulance and at a hospital that were surreptitiously audio recorded by a police officer who was with him in the ambulance. Some of these statements were in direct response to police questioning even though Mr. Plummer had not been given the opportunity to speak to a lawyer.
[5] After receiving treatment at the hospital, Mr. Plummer was taken to the OPP Bolton police station and at 11:09 p.m. he was interviewed by Det. Mullan. By this time, he had been formally read his rights to counsel and cautioned and he had spoken to a lawyer. Det. Mullan reviewed Mr. Plummer’s rights on video and Mr. Plummer asserted that he knew his rights which included a right to retain a lawyer and a right to remain silent. Det. Mullan also reviewed the secondary caution with Mr. Plummer (the “Mullan statement”).
[6] The Crown sought a ruling that the Mullan statement was voluntary. On March 10, I held that the Mullan statement had been proven voluntary with written reasons to follow.
[7] Mr. Plummer argued that the Mullan statement was so strongly connected and causally linked to earlier statements as to have been also obtained in a manner that violated his right to counsel, pursuant to the derived confessions rule. Mr. Plummer sought exclusion of the Mullan statement under s. 24(2) of the Charter as having been obtained in a manner that infringed his Charter rights.
[8] I found Mr. Plummer’s argument to be unpersuasive and dismissed his application with written reasons to follow. There is no question that the police violated Mr. Plummer’s right to counsel in obtaining the earlier statements. However, the Mullan statement was not obtained in a manner that infringed Mr. Plummer’s Charter rights because:
i. the statement was not sufficiently connected to the earlier statements obtained in violation of s.10(b) of the Charter;
ii. the earlier statements were not a substantial factor contributing to the making of the statement to Det. Mullan; and
iii. a fresh start severed any prior statements from the statement provided to Det. Mullan.
[9] Even if I am wrong in my analysis as to the operation of s. 24(2), under the test developed by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R 353 I would not exclude the Mullan statement.
[10] These are the written reasons for my decision.
B. Facts
The Tainted Statements
[11] Mr. Plummer made a number of statements after his arrest on November 10, 2011, on the roadway, in the ambulance and at the hospital. These statements are summarized in the following chart:
Statement
Time
1
On the roadway to Cst. Magee and Cst. Prodger immediately after his arrest at gunpoint.
11:38 a.m. to 11:55 a.m.
2
At the roadside to Cst. Flores while in custody of Cst. Magee and Cst. Prodger
11:39 a.m. to 11:45 a.m.
3
In the ambulance to Cst. Magee
12:19 a.m. to 12:27 a.m.
4
Audio recorded statements while en route to the hospital and in the hospital treatment room.
12:35 p.m. to 4:30 p.m.
[12] I have already ruled that statements #1 to #4 violated Mr. Plummer’s Charter rights in a separate ruling regarding the admissibility of the knife. I will not repeat my analysis. The Crown conceded that statement #4 was obtained as a result of the police breaching Mr. Plummer’s rights.
[13] As I stated in that earlier ruling, when the police arrest an accused they have the following duties:
to inform the detainee of his or her right to retain and instruct counsel without delay (informational);
if the detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right, except in urgent and dangerous circumstances (implementational); and
to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity to contact counsel except in cases of urgency or danger (implementational or hold off).
[14] The police failed to discharge all three of their duties in obtaining statements #1 to #4. The breaches were serious and I would not have admitted these statements pursuant to s. 24(2) of the Charter.
[15] On this application the parties argued the admissibility of the Mullan statement.
The Involvement of Det. Mullan
[16] Det. Mullan was one of the investigating officers who attended at the crime scene. At 12:35 p.m., he approached Cst. Magee and gave him a recording device. At this time, Mr. Plummer had been placed in an ambulance for transport to the hospital to receive treatment for a severed tendon in his hand. Det. Mullan told Cst. Magee “don’t turn it off.” Cst. Magee accompanied Mr. Plummer to the hospital but did not tell Mr. Plummer that he was recording his conversation in the ambulance or at the hospital.
[17] There is no evidence that Det. Mullan had any contact with Mr. Plummer at the scene, ambulance or hospital. Prior to interviewing Mr. Plummer at the police station, Det. Mullan retrieved the recording device from Cst. Magee but there is no evidence that he actually listened to what Mr. Plummer had said on the tape.
[18] Det. Mullan was directed to interview and arrest Marlon Nurse at the Caledon OPP police station. Mr. Nurse was initially treated as a material witness at the crime scene. Det. Mullan interviewed Mr. Nurse on video between 7:42 p.m. until 9:06 p.m.
[19] Det. Mullan testified that the only information that he received from other officers before he interviewed Mr. Plummer was that the police had seized the knife and Mr. Plummer was “giving it all up”. He was not part of any investigative meeting with any investigative team at the Caledon OPP. He could not recall receiving information from Det. Stone about the investigative meeting.
[20] Det. Stone testified that she would have told Det. Mullan some things about the investigative meeting. I accept her evidence and prefer her evidence over Det. Mullan on this point. It seems to me to be quite natural for Det. Stone to share with Det. Mullan aspects of the meeting before he interviewed Mr. Plummer. While neither of the officers can recall what was specifically exchanged, I am satisfied that information was given to Det. Mullan about discussions in the investigative meeting.
[21] Given my finding, it may very well be that Det. Stone told Det. Mullan that Mr. Plummer was giving it all up and that the police had the knife. However, there is no evidence that Det. Mullan was told that Cst. Magee, or any other police officer, had elicited information from Mr. Plummer before he had a chance to speak to a lawyer.
Mr. Plummer’s Video Statement to Det. Mullan
[22] After being treated at the hospital for his hand, Mr. Plummer was transported to the Bolton OPP station and he spoke to a lawyer from 4:45 p.m. to 5:00 p.m.
[23] After dealing with Mr. Nurse, Det. Mullan was directed to conduct an interview of Mr. Plummer. Det. Mullan travelled from the Caledon OPP station to the Bolton OPP station and spoke to Mr. Plummer for about two hours beginning at 11:09 p.m. Det. Susan Stone monitored the interview outside of the interview room and took brief notes.
[24] The first ten minutes of the interview are not recorded because there was an issue with the recording equipment. Det. Mullan was notified of the problem and he immediately stopped speaking to Mr. Plummer and recommenced the interview when the officers were satisfied that the interview was being recorded.
[25] Det. Mullan testified that during the unrecorded portion of the interview he specifically confirmed with Mr. Plummer that he had been arrested for murder and confirmed that Mr. Plummer understood his rights. He was also told by his superior officers to read Mr. Plummer’s rights and cautions to him from his police card. He thought this was unusual but followed through with their direction and he testified that he read Mr. Plummer’s rights to counsel, caution and secondary caution from the card.
[26] Det. Mullan testified that he read these rights directly from this card. He testified that Mr. Plummer told him he had spoken to a lawyer and that Mr. Plummer declined to speak to a lawyer. Det. Mullan testified that Mr. Plummer then asked him to repeat to him what his rights, caution and secondary caution were.
[27] Det. Stone testified that she recalled Det. Mullan reviewing Mr. Plummer’s rights in plain English with him during this time period and she recalled him reading a secondary caution from a card in order to reinforce that he should not be influenced in his decision to give a statement to anything that had been said to him by any officer up to that point.
[28] When Det. Mullan recommences interviewing Mr. Plummer on tape, he explains to Mr. Plummer that the tape was not working and Mr. Plummer replies “I can’t say what I said all over again”. Det. Mullan then confirms that he was read his rights. Mr. Plummer responds: “Oh okay”. He then asks Mr. Plummer what his rights were and Mr. Plummer states that he knew that his rights included a right to retain a lawyer, to remain silent and that if he was told he should speak to the police he was not obligated to speak.
[29] At the outset of the interview, Mr. Plummer confirms that he has exercised his right to counsel and states: “I did speak to my lawyer. They gave me great advice which I am going to use.”
C. Analysis
The Statement to Det. Mullan was Voluntary
[30] The Supreme Court of Canada emphasized in R. v. Oickle, 2000 SCC 38 at para. 47, that voluntariness must be assessed contextually and broadly. Threats or promises, oppression and the operating mind doctrine must be considered together. Police trickery, however, is a discrete inquiry. As Iacobucci J. stated at para. 71 of that decision: “a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession's voluntariness.”
[31] I have considered all of the circumstances and I find that there was no atmosphere of oppression or anything in the police officers’ conduct that was so oppressive as to overbear Mr. Plummer’s will. There were no threats of any kind. I agree with the Crown that Det. Mullan’s interaction with Mr. Plummer was respectful and responsive. I also agree with the Crown counsel’s submission that there is no evidence that any police officer threatened or created an atmosphere of oppression after Mr. Plummer was arrested at gun point. He was also never provided with any inducements to speak. Indeed, at one point during the interview Mr. Plummer tells Det. Mullan that “you guys (the police) have been excellent.”
[32] Mr. Plummer was very co-operative throughout the interview. Indeed, he was co-operative from the moment that he was arrested. The Mullan interview lasts between 11:09 p.m. and 1:52 p.m. Mr. Plummer was allowed to use the bathroom more than once and he was provided with water.
[33] I am also satisfied that Mr. Plummer had an operating mind at the time of the statements. There is no evidence or indication of any impairment. Although he had been awoken from sleep, and at time he professed to want to vomit there is absolutely no indication that Mr. Plummer did not fully comprehend what he was saying or that he was not aware that he was saying it to police officers who could use it to his detriment. When he was asked to explain his rights in plain English on video, he repeats back what was told to him in a coherent fashion. In the video statement he understood what was being asked of him and was coherent in his answers.
[34] It is clear that Mr. Plummer elected to talk about some aspects of the case, but refused to discuss his own involvement. I do not agree with Mr. Plummer’s submission that Det. Mullan’s approach during the interview undermined his free will to provide a statement. On more than occasion when Det. Mullan left the room, Mr. Plummer would speak directly to the camera and engage in a monologue. On at least one occasion his remarks appeared to be directed at Marlon Nurse. In my view, these monologues are very telling as to Mr. Plummer’s state of mind when he spoke to Det. Mullan. Mr. Plummer was voluntarily providing a statement to Det. Mullan because he thought that it would implicate Mr. Nurse.
[35] I am satisfied that he was explicitly informed of the serious jeopardy confronting him, his right to consult counsel and cautioned repeatedly that any statements he might make to the police officers could be used to his detriment. I am fully satisfied that he understood that he had no obligation to talk to the police. His motivation was to ensure that the police understood that Marlon Nurse was implicated in this crime. The following remarks reveal that Mr. Plummer fully understood that anything he said could be used against him:
You’re gonna hear it in the report man. I really don’t wanna say anymore. I think I’ve pretty much. I might even fuck myself even more. I don’t know. I was told not ta speak to you guys at all. But just it’s burning me. I feel. You guys are about to let this guy (Marlon Nurse) go. Then you don’t ever find him. And then now what. I take the rap for everything. [Emphasis Added. See Transcript of Interview, page 85, Application Record of the Crown Volume IV Tab 23).
[36] I should say that the interview with Mr. Plummer was not perfect and that not all of Det. Mullan’s conduct is beyond reproach. References to “save yourself” and discussing potential sentences for murder were not ideal. That being said, I accept his evidence that he was trying to steer the conversation away from discussing punishment but Mr. Plummer appeared to ask him a number of questions around what sentence he would receive. I do not accept the defence submission that this was specifically designed and intended by Det. Mullan as an inducement and I do not accept that he promised Mr. Plummer anything for speaking to him.
[37] I also see nothing in the record that suggests Det. Mullan undermined counsel’s advice to Mr. Plummer. At times, Mr. Plummer makes reference to a report that will be provided later to the court. Det. Mullan does not inquire into what Mr. Plummer meant by a report. Mr. Plummer appears to suggest that his explanations would be told at a later time in court through a report. The failure to inquire into what Mr. Plummer meant by a report does not mean that Det. Mullan was undermining counsel’s advice to Mr. Plummer. At the outset of the interview Mr. Plummer told him he had received excellent advice.
[38] Having considered all of the evidence on the voir dire, there is no evidence here that raises a reasonable doubt about whether Mr. Plummer’s will was overborne. I have no reasonable doubt about the voluntariness of Mr. Plummer’s statements.
The Statement provided to Det. Mullan was not Tainted by the Earlier Breaches
[39] Mr. Plummer argues that even if the statement is voluntary, I should not admit the statement because it was obtained in violation of Mr. Plummer’s Charter rights. Effectively, Mr. Plummer is arguing that the earlier breaches tainted the Mullan statement.
[40] I do not accept this argument. 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 Mullan statement. I also appreciate that a causal connection is not necessary and is not a requirement to trigger an analysis under s. 24(2).
[41] The leading authorities hold that evidence will be “obtained in a manner” that infringed a Charter right if, on a review of the entire chain of events, from arrest to the end of the interview, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the infringement and the acquisition of the evidence may be temporal, contextual, causal, or a combination of the three, but the connection must be more than tenuous or remote. This applicable test has been set out by the Supreme Court of Canada in R. v. Wittwer, 2008 SCC 33 at paras. 21 to 23.
The Mullan Statement was not Sufficiently connected to the Earlier Statements
[42] In my view, Mr. Plummer has not established a sufficient connection here between the earlier breaches of the Charter and the Mullan statement. I say this for the following reasons.
[43] First, the statements made at the road, ambulance and hospital were not part of the same ongoing interrogation process. The statements at the road and in the ambulance were really not in the form of an interrogation. It is clear that Mr. Plummer was motivated to speak right at the outset of his arrest when he made the statements at the road, ambulance and hospital. The police took advantage of that motivation by violating his rights and asking him about the location of the knife when they were in the hospital. In stark contrast, Det. Mullan’s interview was a planned interrogation that was designed to use Mr. Plummer’s anger at Mr. Nurse to speak. However, it occurred after Mr. Plummer had been treated at the hospital, lodged in cells, given a call to a lawyer, provided food, and an opportunity to sleep. He was not left sitting by himself in an interview room waiting for police officers to come into the room to ask him questions. It cannot be said that the earlier statements were part of the same transaction as the Mullan statement.
[44] Second, a plain reading of the words used in the interview and the areas covered in the interview, suggest that the Mullan statement is not a continuation of the earlier statements. Out of 108 pages of transcript the only reference to any prior statement is Det. Mullan thanking Mr. Plummer for telling the police where the knife was. He was not confronted with the earlier statements.
[45] Third, the statement to Det. Mullan and the earlier statements were separated by about eight hours. I appreciate that measuring the temporal connection requires more than counting hours and minutes but the length of time between his last statement and the start of the Mullan