ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 14-30000449

DATE: 20150716

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DANIEL WISE

Beverly Olesko, for the Crown

Tyler Smith, for Daniel Wise

HEARD: June 1-3, 2015

r.f. goldstein j.

REASONS FOR JUDGMENT

[1] The armoured truck business is a dangerous game. Those trucks carry large amounts of cash. That makes them targets. Garda is a very large security company. On November 18, 2011, one of its trucks was robbed. Masked armed robbers threatened two guards with a weapon. They disarmed the guards, who surrendered their weapons, two pistols. The robbers took the pistols and got away with a large amount of cash.

[2] The robbers used a U-Haul van as the getaway car. The police found the van and searched it. They found, among other things, a cigarette butt. The butt was tested for DNA. There were two DNA profiles on it. One was Mr. Wise’s. The other belonged to “T”, another alleged participant in the robbery. At the time of Mr. Wise’s arrest his DNA profile had been identified on the butt but T’s had not.

[3] The police also conducted surveillance and intercepted telephone calls. The intercepts revealed that Mr. Wise might have been involved in the robbery of a drug dealer and the trafficking of a firearm.

[4] In May 2012 the police received information that Mr. Wise was holed up in a Howard Johnson motel in Markham. They obtained search warrants. They surrounded the place. The Emergency Task Force went into Room 126. Mr. Wise wasn’t there. The ETF then went into Room 128. Mr. Wise was arrested without incident.

[5] Mr. Wise was transported to 33 Division. Staff Sergeant Gallant and Detective Rand of the Holdup Squad interviewed him. He gave a statement on video. He confessed to taking part in the robbery but said that his accomplices threatened him and forced him to participate. Mr. Wise testified in court that the police threatened him and beat him until he gave a statement.

[6] The Crown now seeks to tender that statement in evidence against him. Mr. Smith, Mr. Wise’s counsel, argues that the statement was not voluntary, was taken in violation of Mr. Wise’s Charter rights, and should be excluded.

[7] For the reasons that follow, I find that the Crown has not proven beyond a reasonable doubt that Mr. Wise’s statement was voluntary. It is not necessary for me to decide the Charter arguments, but for the sake of completeness I find that Mr. Wise’s right to counsel was not violated.

[8] Accordingly, the statement is excluded for all purposes. It may not be introduced in evidence against Mr. Wise.

ANALYSIS:

[9] There are three applications before the Court. The first is an application by the Crown to introduce Mr. Wise’s statement into evidence against him. The second is an application by Mr. Wise to exclude the statement on the basis of a violation of his right to counsel of choice under s. 10(b) of the Charter of Rights and Freedoms. The third is an application by Mr. Wise to stay the proceedings on the basis of oppressive and unconscionable conduct by the police.

[10] Both counsel agreed that the third application ought to be considered at the end of the evidence on the trial itself if there was to be a trial.

[11] I turn to the first application:

(a) Was Mr. Wise’s confession voluntary?

[12] I find that Mr. Wise’s confession was given as the result of an unrecorded pre-interview with the police. There was an atmosphere of oppression created that induced the confession, although I reject Mr. Wise’s evidence that the police physically roughed him up.

[13] The Crown must prove beyond a reasonable doubt that a confession was voluntary in order to admit it into evidence: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3. The confession must be free of inducements or oppression, or as it was originally put in the famous case R. v. Ibrahim, [1914] A.C. 599, “fear of prejudice or hope of advantage.” The Crown must also show that the accused had an operating mind. The operating mind requirement is not at issue here.

[14] The Supreme Court in Oickle identified three factors that could undermine the voluntariness of a confession: threats or promises; oppression; and police trickery.

[15] Not every inducement will result in inadmissibility. Police trickery will not inevitably result in inadmissibility. Indeed, police trickery is sometimes a necessary part of criminal investigations. On the other hand, it is difficult to conceive of a situation where oppressive conditions would not result in a confession being rendered admissible. In Oickle at paragraph 60 the Supreme Court noted that an atmosphere of oppression can be created by depriving the suspect of basic necessities such as food, water, clothing, sleep, or medical attention; denying access to counsel; or by excessively aggressive intimidating questioning over a prolonged period.

[16] In this case, the police induced the confession by an atmosphere of oppression rather than through threats, inducements, or trickery.

[17] How was this atmosphere of oppression created? I will go over the sequence of events. The Emergency Task Force arrested Mr. Wise at gunpoint at 6:27 am. The ETF turned him over to Sergeant Brent Johnston of the Drug Squad. The Drug Squad was assisting the Holdup Squad with the execution of search warrants. Sergeant Johnston arrested Mr. Wise for conspiracy to commit robbery, gave him his rights to counsel, his caution, and his secondary caution. Sergeant Johnston then turned Mr. Wise over to uniformed officers almost immediately. The officers transported him to 33 Division. They arrived at 33 Division at 6:54 am but had to wait until 7:19 am to enter the sally port as the division was busy dealing with other prisoners. Mr. Wise was then paraded before the booking sergeant. The sally port video and the booking video show that Mr. Wise was calm, perhaps even still sleepy. The uniformed officers then took Mr. Wise to Interview Room B and conducted a strip search. They found nothing untoward. They completed the search at 7:34 am. The uniformed officers then met with Staff Sergeant Gallant and Detective Constable Rand of the Holdup Squad. They briefed the two Holdup Squad officers as to the events of that morning.

[18] Up to that point there was nothing improper, coercive, or oppressive about the way Mr. Wise was treated. It is completely understandable that a man involved in an armoured truck robbery who might have been trafficking stolen handguns was arrested by the ETF at gunpoint.

[19] Staff Sergeant Gallant and Detective Constable Rand were not the lead investigators on the file but they had been assigned to interview Mr. Wise. They prepared by reading a package of material compiled by the lead investigators. The package contained CD’s of wiretaps, observation reports, notes, and other material. Staff Sergeant Gallant did his own additional checks and research on Mr. Wise.

[20] At 7:46 am Staff Sergeant Gallant and Detective Constable Rand finished the briefing with the uniformed officers. At 7:57 am the two Holdup Squad officers entered Interview Room B and spoke to Mr. Wise. Interview Room B is one of three interview rooms located in the same area as the Criminal Investigation Bureau at 33 Division. Staff Sergeant Gallant read out the charges that Mr. Wise faced: robbery with firearm; conspiracy to commit the indictable offence of robbery; possession of property obtained by crime; conspiracy to commit the indictable offence of trafficking firearms; conspiracy to commit the indictable offence of a street robbery; and conspiracy to commit the indictable offence of trafficking in a controlled substance. Detective Constable Rand read Mr. Wise his rights to counsel. Mr. Wise stated that his lawyer was Michael Webster. He did not know Mr. Webster’s phone number. Staff Sergeant Gallant asked Mr. Wise whether he would be willing to speak to duty counsel if he could not contact Mr. Webster. Mr. Wise said that he was. Detective Constable Rand then read him the caution and the secondary caution. Mr. Wise said that he understood. They left the room at 8:00 am. There was no indication on the audiotape that Mr. Wise was crying, or upset. This short interview was recorded on audio. It lasted 3 minutes and 27 seconds.

[21] Again, up to that point, nothing improper, coercive, or oppressive occurred. At 10:22 am the officers commenced taking Mr. Wise’s statement. Between 8:00 am and 10:22 am Mr. Wise spoke to duty counsel, and was given food and water by the officers. According to Detective Constable Rand, Mr. Wise was not crying or in pain after his call to duty counsel. He was quiet, and somber.

[22] It is not entirely clear what the two officers were doing between 8:00 am and 10:22 am. There is some evidence of their activities. At 9:22 Detective Constable Rand took a phone call in relation to another matter. Staff Sergeant Gallant took food and water to Mr. Wise. Detective Constable Rand prepared the DVD room. Other than that, Detective Constable Rand testified that the officers were doing their notes, making administrative checks, and preparing for the interview.

[23] At 10:22 am Staff Sergeant Gallant escorted Mr. Wise from Interview Room B to the interview room. The interview room was actually station commander’s conference room. There was a DVD recorder with a microphone set up on the conference table. The video interview commenced at 10:25 am.

[24] On the video Mr. Wise is sobbing, upset, and clearly in distress. His demeanour is strikingly different from his demeanour on the booking video or his voice on the audiotape.

[25] Mr. Wise testified that he asked to speak to Michael Webster, but spoke to duty counsel when Mr. Webster was not available. He said that he told the officers that he was following duty counsel’s advice and would not give a statement. He said that they took him to the video interview room and told him to make a statement. Mr. Wise refused. Staff Sergeant Gallant asked him why he was protecting his accomplices. He said that the police knew that Mr. Wise received no money from the robbery. He said that the police grabbed him, spun him around, and punched his ribs and stomach a few times. He was on the floor and hysterical. He said that the police showed him photographs of his accomplices. He said that the police told him that they had a cigarette butt with his DNA on it. He said that the police took then took him back to the video interview room. He again refused to make a stateent. He said that the police took him back to the interview room again and beat him up. They then took him a third time to the video room, where he proceeded to give a confession.

[26] Both officers testified that there had been no “pre-interview” with Mr. Wise. They both denied showing him photographs, telling him about the cigarette butt, or about the intercepted communications. They denied assaulting Mr. Wise.

[27] In my view, the only logical explanation for Mr. Wise’s confession and demeanour was that the officers confronted him with some of the evidence prior to putting him on tape and threatened him. I accept Mr. Wise’s evidence to that extent. I point to three pieces of evidence in particular:

[28] First, there is no other explanation for Mr. Wise’s sudden change of demeanour. The officers speculated that Mr. Wise finally understood his full jeopardy after the audiotaped interview. I find that explanation unpersuasive. That interview took place just before 8:00 am. The videotaped interview commenced at 10:25 am. Mr. Wise would have had well over two hours to calm down – and he was calm during the audiotaped interview. Furthermore, Mr. Wise was calm after being arrested at gunpoint, surely a more traumatic event than having some extra charges read to him. Some intervening event happened between 8:00 am and 10:25 am to cause Mr. Wise to change his demeanour. The obvious inference is that it was an encounter of some kind between Mr. Wise and the officers.

[29] Second, at page 87 of the transcript of the following conversation took place:

GALLANT: Okay what about uh now other drug dealers obviously like I said we’ve been listening to conversations and there’s been some you know you’ve been taking property from other drug dealers but again that’s just part of I guess you gues between yourselves it’s part of the business, right? You got to eat?

WISE: Yeah I guess.

GALLANT: At the end of the day…

[30] Staff Sergeant Gallant said that the police had been intercepting communications, and said that he had mentioned it to Mr. Wise. In fact, Staff Sergeant Gallant had not mentioned intercepted communications during the previous 86 pages of questions. Mr. Wise was not surprised by the disclosure. The officers had obviously already told him about the intercepted communications.

[31] Third, and finally, there was the matter of the cigarette butt. As I mentioned, the police found a cigarette butt in the back of the U-Haul truck that was used by the robbers. Mr. Wise’s DNA profile was identified on the butt. There was another DNA profile on the butt. It was unidentified at the time of Mr. Wise’s arrest. The DNA later identified it as belonging to “T”, or Tarek. “T” was one of the accomplices in the armoured car robbery. The following exchange occurred at pages 47 and 48 of the transcript:

GALLANT: Okay uhm so you started driving there right? Are you a smoker?

WISE: Yes.

GALLANT: Okay what type of cigarettes do you smoke?

WISE: Belmonts.

GALLANT: Belmonts okay as your’re driving there there’s no discussion about whats going to happen?

WISE: That’s the cigarette butt is T’s.

GALLANT: Okay no you you …

WISE: … the cigarette butt is T’s…

[32] Mr. Wise was obviously confronted at an earlier point with the evidence that a cigarette butt with his DNA profile was found in the U-Haul. That was how he went right to the issue of the butt. It seems likely that the police wanted to know the identity of the other smoker – the person with the unknown DNA profile. That was probably why Mr. Wise immediately mentioned “T”.

[33] Let me be clear that I do not accept Mr. Wise’s evidence that he was physically roughed up and taken back and forth to the DVD room three times. Given the evidence regarding the thickness of the walls, the presence of many other uniformed officers and civilian police employees, and the proximity to the station commander, I find Mr. Wise’s evidence implausible. He did not appear to be in physical pain on the video. That said, the officers obviously did not need to use physical force. It was enough to confront him with the evidence against him in order to create the required atmosphere.

[34] Ordinarily, there is no issue with the police using evidence selectively to question a suspect. The police are obviously entitled to use tactics in interviewing suspects. Of course, in doing so they must not cross the line from aggression to coercion and oppression. That would risk rendering the statement involuntary and inadmissible. Unfortunately, that is what happened here. Regrettably, the officers denied that a “pre-interview” took place when it clearly did. It also does not help that this “pre-interview” was not recorded: R. v. Moore-McFarlane (2001), 2001 6363 (ON CA), 160 C.C.C. (3d) 493 (C.A.).

(b) Did the police violate Mr. Wise’s right to counsel of choice?

[35] Mr. Smith argues that the police offended Mr. Wise’s s. 10(b) Charter right to his choice of counsel. In essence, he argues that they simply did not do enough to find Mr. Webster. He says that offering Mr. Wise the choice of speaking to duty counsel was, under the circumstances, a false choice.

[36] I respectfully disagree. Mr. Wise testified that he wanted Michael Webster to represent him as Mr. Webster had once beaten a charge for him. Detective Constable Rand testified that he did some internet checks to try and find Mr. Webster. He came up with the “Law Office of Michael Webster” and a phone number. When he called the number it belonged to an unrelated company. He says that he spent 30 minutes trying to find contact information for Mr. Webster. He and Staff Sergeant Gallant both knew Mr. Webster. They both recalled that Mr. Webster worked out of Old City Hall, and at that hour of the morning they expected him to be there. Detective Constable Rand testified that he was surprised that he could not find Mr. Webster. After a half-hour he contacted duty counsel for Mr. Wise. Mr. Wise agreed that he would speak to duty counsel if Mr. Webster were not available.

[37] The right to counsel of choice is an important aspect of s. 10(b) of the Charter but it is not an unlimited right. The line of authority from the Supreme Court of Canada dealing with the right to counsel of choice upon arrest and detention is clear. It does not assist Mr. Wise: R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402 at paras. 17-19; R. v. Brydges, 1990 123 (SCC), [1990] 1 S.C.R. 190. A detained person has the right to speak to a specific lawyer and can wait a reasonable amount of time if that lawyer is not available. If that lawyer does not then become available, the detained person must exercise the right to counsel by contacting another lawyer. If a detained person does not exercise reasonable diligence, the police are not required to hold off on their questioning.

[38] In this case, the police did attempt to contact Mr. Webster. Both officers knew Mr. Webster and made efforts to find him. It is certainly true that they could have done more, such as search the Law Society site. The police are not expected to conduct a manhunt on behalf of the detainee. Mr. Wise was offered the opportunity to speak to another lawyer, which he did. I can see no violation of s. 10(b) under these circumstances.

DISPOSITION

[39] I am aware that by excluding the statement from evidence that the Crown will be unable to successfully prosecute this case, and an acquittal will result. That is an unfortunate result as there is an important societal interest in prosecuting this serious case of armed robbery. The police interrogation crossed the line from aggressive to oppressive. That rendered the statement involuntary.

R.F. Goldstein J.

Released: July 16, 2015

COURT FILE NO.: 14-30000449

DATE: 20150716

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DANIEL WISE

REASONS FOR JUDGMENT ON VOIR DIRE

R.F. Goldstein J.