COURT FILE AND PARTIES

COURT FILE NO.: CR-12-1712
DATE: 20141208

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Pattel BROWN

Defendant

J. Campitelli for the Crown

J. Miglin for the Defendant

HEARD: December 1, 2 and 3, 2014

RULING ON THE ADMISSIBILITY OF DEFENDANT’S STATEMENTS

Ricchetti, J. :

THE CHARGE

[1] Mr. Brown is charged with importing a controlled substance under the Controlled Drugs and Substances Act.

THE APPLICATIONS

[2] There are two applications before this court.

[3] The first application is by the Crown for a ruling on the voluntariness of the statements made by Mr. Brown before and after his arrest on April 30, 2011.

[4] The second application is by the Defence for a ruling that all Mr. Brown's statements be excluded as obtained in breach of the Defendant’s Charter rights.

THE VOIR DIRE

[5] Both counsel agreed to proceed by way of a “blended” voir dire.

[6] The evidence at the voir dire consisted of the viva voce evidence of CBSA Officers Parkinson, McNamara, Cortese and Rajaratne (the "Officers").

[7] Counsel also agreed to the admission of Mr. Brown’s itinerary seized from him that night.

THE FACTS

[8] Mr. Brown returned from Jamaica on April 30, 2011.

[9] At approximately 11:00 pm, Mr. Brown attended at the primary inspection. He was seen by Officer Parkinson who marked Mr. Brown's Customs and Immigration Declaration so as to permit Mr. Brown to retrieve his luggage and leave the Pearson International Airport.

[10] Mr. Brown retrieved his luggage and proceeded to the exit. At the exit, Officer McNamara, who was the point officer, decided to send Mr. Brown for a secondary inspection.

[11] Mr. Brown presented himself to Officer Cortese for secondary inspection. Officer Cortese did not know why Mr. Brown had been sent for secondary inspection. However, Officer Cortese’ suspicions were aroused because Mr. Brown was returning from Jamaica, had said that he had bought his return ticket two days before his return and appeared to be nervous.

[12] After establishing ownership and knowledge of the contents of the suitcases, Officer Cortese inspected the contents of one of Mr. Brown’s suitcase. He found food, clothing, alcohol and 3 cocoa butter jars. Officer Cortese asked Mr. Brown about the 3 cocoa butter jars. Mr. Brown said he had bought these for his girlfriend. (Statement #1) Officer Cortese did not have this exchange in his notes but he testified that this was his recollection, it was vague, but admitted he should have recorded this exchange in his notes. Officer Cortese couldn't remember if he asked Mr. Brown this question before or after the ion scan described below.

[13] After the contents were removed from Mr. Brown's suitcase, Officer Cortese swabbed the interior of the suitcase. He took the swab to the Ion Scanner. The swab scanned positive for cocaine. While his suspicions had increased, Officer Cortese didn’t believe he had grounds to arrest Mr. Brown as a positive scan didn’t necessarily mean the person had cocaine in his possession at that time.

[14] Officer Cortese asked Mr. Brown why the ion scan would come back positive. Mr. Brown responded I don’t know, I just smoke weed – that’s it. (Statement #2). Officer Cortese admitted that this may not be verbatim but that this was in effect what Mr. Brown had said.

[15] Officer Cortese proceeded to take a cocoa butter jar to the X-ray machine. The X-ray showed that there were anomalies in the contents, including indicating that the bottom portion of the jars were denser and consisted of different shapes. Officer Cortese emptied a jar. The jar still felt heavy. Officer Cortese cut the side of the jar and found a white powdery substance which led Officer Cortese to believe it was narcotics.

[16] At approximately, 11:20 pm, Officer Cortese arrested Mr. Brown. He told Mr. Brown he was under arrest for smuggling. He read Mr. Brown his rights and caution. Mr. Brown declined to speak to counsel. A NIK test was performed on the white powder and it tested positive for cocaine.

[17] Officer Cortese proceeded to finish the investigation of the suitcase and preserve the evidence for about 15-20 minutes while Mr. Brown remained in the secondary inspection area. Officer Rajaratne was assigned to assist Officer Cortese. While still at the secondary inspection area or on the way to the search room, at 11:35 pm Mr. Brown said “my life is ruined”. (Statement #3) This was not said in response to any question by either Officers Cortese or Rajaratne. Mr. Brown was escorted to a search room to be searched. Both Officers recorded the same note of this statement in their respective notebooks using quotations, signifying that it was a quote from Mr. Brown rather than the gist of what was said.

[18] On the way to the search room and because there were telephones in the search area, Officer Cortese again asked Mr. Brown whether he wanted to speak with counsel. Mr. Brown again declined. Between 11:48 pm and 11:57 pm, Mr. Brown’s person was searched. Nothing relevant was found.

[19] At approximately 11:57 pm, Mr. Brown was placed into a holding cell. The door was open. The open door led into an outer room where the CBSA officers, some 10-15 feet away) could prepare their notes or do other things while waiting for the RCMP to arrive to take custody of Mr. Brown.

[20] Mr. Brown was emotional and upset during this period of time while in the cell.

[21] At 12:05 am Mr. Brown said “I should not have taken it”. (Statement #4). This was not in response to any question from or statements by the Officers. Mr. Brown was in the cell. The Officers were not in the cell. They were in the outer area and heard Mr. Brown make this statement. Both Officers had recorded this independently in their respective notebooks that night. Again, both Officers put this statement in quotations in their notebooks.

[22] At 12:10 a.m. Mr. Brown said “I’m sorry, I’m sorry”. (Statement #5) This was not in response to any question from or statement by the Officers. Mr. Brown was in the cell. The Officers were not in the cell but were in the outer area and heard Mr. Brown make this statement. Both Officers recorded this in their respective notebooks independently that night. Again, both Officers put this statement in quotations in their notebooks.

[23] When these statements were made, it was not clear to Officer Cortese whether Mr. Brown was speaking to them when he made Statements #4 or #5 or just speaking to himself. The statements were loud enough to be heard by the Officers. In either case, in my view, it does not matter as either the statements were spontaneous statements not elicited by a person in authority. There was no missing context since nothing significant or related to this statement was said before or after these last two statements.

[24] At 12:18 am, Officer Rajaratne asked Mr. Brown where did you get this? Mr. Brown answered that his friend had got it for him. (Statement #6) Both Officers had this statement in their notes. Neither Officer had Mr. Brown’s response in quotations so that this was generally what was said.

[25] Officer Rajaratne recalled that he then also asked Mr. Brown where his friend had gotten it. Mr. Brown said he didn’t know. (Statement #7) Neither Officer had this statement in his notes.

[26] At 12:48 am, Mr. Brown says “I never man, I never. Why you do this to me”. (Statement #8) This was not in response to any question from or statement by the Officers. Mr. Brown was in the cell. The Officers were not in the cell but were in the outer area and heard Mr. Brown make this statement. The statement was made loud enough for the Officers to hear it. It was made 1/2 hour after the last statement. There was no context as nothing significant was said prior to the statement being made. Both Officers recorded this in their respective notebooks independently that night. Again, both Officers put this statement in quotations in their notebooks.

[27] Officer Rajaratne then asked Mr. Brown who he meant by “you”. Mr. Brown responded “friends in Jamaica” “people you trust”. (Statement #9) This was recorded in both Officers’ notes which they independently made that evening. While much was made about Officer Rajaratne having the second part of this statement in the margin (the suggestion being it was added later), both parts of the statement were included in Officer Rajaratne's narrative prepared later that night. I am not persuaded anything turns on the placement of the words "people you trust" in Officer Rajantne's notes.

[28] For almost the next two hours, aside from providing a sweater and water to Mr. Brown, the Officers’ notes do not show any other statements made by Mr. Brown. At 2:34 am, custody of Mr. Brown was transferred to the RCMP.

[29] There is no evidence that Mr. Brown was threatened, induced by any promise or in any physical or mental distress which would have affected his ability to decide whether to make or refrain from making any statements. I accept the evidence of the Officers that no such threats or promises of inducement were made to Mr. Brown. I also accept their evidence that there was nothing effecting Mr. Brown physically or mentally which deprived Mr. Brown of the ability to decide whether or not to make statements or what to say.

[30] Both Officers relied heavily on their notes for what had occurred that night. Given the number of passengers seen by the Officers before and after the events of April 11, 2011, this is neither surprising nor troubling. Officer Rajaratne testified that he made many of his notes immediately after the events had transpired rather than wait until later that evening to put them into his notebook. This provides an even greater assurance of accuracy, particularly where in his notes the notation was placed in quotes to reflect a verbatim recollection.

[31] Officer Rajaratne stated that he made notes of what he thought were important or relevant to the investigation. He testified that, other than small talk, he could recall no other discussions with Mr. Brown or statements made by Mr. Brown that night. He denied he was including in his notes only what was helpful to the charges. I accept this evidence.

[32] On the evidence in the voir dire, there is no evidence inconsistent with the evidence of the Officers that anything of any significance or which would have provided any context to the above statements was made before or after the statements. The cross-examination of the Crown's witness did not result in any evidence to the contrary. The Defence led no evidence to the contrary. Given this record before me, the Defence would have me speculate as to the possibility of the existence of other statements or conversations which may have been significant to the statements either by way of qualification or context. I decline to do so.

[33] There is a video of the secondary inspection area but this was not part of the evidence at the voir dire. There was no evidence that this video had any audio. There was no video camera in the search area. There is a video camera in the cell area but there is no evidence that this video camera has any audio. Essentially, it would appear these are simply surveillance cameras and would not have assisted in determining what was said in the various locations.

[34] There is no evidence that the Officers readily had access to a video or audio recording device. The only evidence is that the Officers had access to a camera to take photographs. The Defence would have me assume that such cameras have video\audio capabilities which could have been used by the Officers. I am not prepared to speculate on this matter either.

THE LAW

[35] The onus to establish that Mr. Brown’s statements were voluntary is on the Crown to establish voluntariness beyond a reasonable doubt.

[36] The onus to establish that Mr. Brown’s Charter rights were breached is with the Defence and must be established on the balance of probabilities. Further the Defence would have to establish that the statements should be excluded under s. 24(2) of the Charter.

[37] On the issue of non-recorded statements, the leading case remains R. v. Moore-McFarlane, 2001 6363 (ON CA), [2001] 152 O.A.C. 120.

[...continued exactly as original until end...]

Ricchetti, J.

Released: December 8, 2014