ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 0270/12
DATE: 2015/08/28
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RYAN ANTHONY BELBIN
S. Cressman & I. Sunderland, for the Crown
J. Penman & J. Shanmuganathan, for the Accused
RULING ON ADMISSIBILITY OF DNA EVIDENCE AND STATEMENTS MADE BY THE ACCUSED
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the complainant may not be published, broadcasted or transmitted in any manner
GARTON J.:
TABLE OF CONTENTS
Para.
INTRODUCTION
[1]
STATEMENT TO POLICE ON DECEMBER 28, 2011
[11]
(1) Evidence
[11]
(a) Testimony of Detectives Peter Christie and Dan Luff
[11]
(b) Testimony of Det. Cst. Kimberley Percival
[22]
STATEMENT TO POLICE ON JANUARY 13, 2012, AND THE OBTAINING OF THE ACCUSED’S DNA SAMPLES
[27]
(1) Evidence
[27]
(a) Testimony of Det. Cst. Villaflor
[27]
(b) Testimony of P.C. Armstrong: Apprehension of Mr. Belbin under the Mental Health Act on July 4, 2006
[71]
(c) Agreed statement of facts regarding Mr. Belbin’s mental health history
[76]
(d) Agreed statement of facts regarding Mr. Belbin’s prior involvement in the criminal justice system
[77]
(e) Consent DNA samples obtained from other males during the investigation
[78]
(2) Issues Regarding Admissibility of Statement
[87]
(3) Legal Analysis and Findings Regarding Admissibility of Statement
[88]
(i) Whether Mr. Belbin was psychologically detained and therefore entitled to be advised of his s. 7 right to silence and s. 10(b) Charter rights
[88]
(ii) Whether Mr. Belbin’s status in the investigation on January 13, 2012, required the police to caution him prior to commencing the interview
[101]
(iii) Whether the Crown has established beyond a reasonable doubt that the statement was voluntary
[124]
(4) The DNA Samples: Legal Analysis and Findings
[125]
(5) Section 24(2) Charter Analysis
[168]
STATEMENT TO DET. THOMAS ON FEBRUARY 18, 2012
[183]
(1) Evidence
[183]
(a) Testimony of Det. Luff
[183]
(b) Testimony of the ETF officers
[196]
(c) Testimony of Det. Cst. Aaron Akeson
[230]
(d) Testimony of Police Constables Bobby Huang and Kevin Clarke
[231]
(e) Testimony of Det. Rob Thomas
[263]
(i) Overview of the interview
[272]
(ii) First Part of the interview
[280]
(iii) Second part of the interview
[322]
(2) Issues
[358]
(3) Legal Principles
[359]
(a) Overarching principles with respect to the voluntariness of a statement
[359]
(b) The relationship between the right to silence under s. 7 and the rights to counsel under s. 10(b)
[360]
(c) The relationship between s. 7 and voluntariness
[366]
(4) Application of the Legal Principles to the Present Case
[367]
The arrest by the ETF
[367]
Mr. Belbin’s mental health and whether he had an operating mind
[378]
Whether Mr. Belbin understood his right to remain silent
[383]
Whether Mr. Belbin’s s. 10(b) Charter rights were breached as a result of the failure of the police to advise him of all the charges he was facing prior to his speaking to duty counsel
[394]
Whether Mr. Belbin’s s. 10(b) Charter rights were breached as a result of Det. Thomas’ failure to contact another lawyer when Mr. Belbin indicated that he was not entirely satisfied with the information provided by duty counsel
[402]
Whether Mr. Belbin was deprived of a meaningful choice whether to remain silent or speak to the police
[407]
Whether the Crown has established beyond a reasonable doubt that the statement to Det. Thomas was voluntary
[424]
(5) Probative Value versus Prejudicial Effect
[433]
(6) Section 24(2) Charter Analysis
[438]
(7) Conclusion
[446]
INTRODUCTION
[1] The accused, Ryan Belbin, age 31, is charged with the following offences:
Count 1: Breaking and entering a dwelling house at D[...] and committing the offence of abducting a person under the age of fourteen, contrary to s. 348(1)(b) of the Criminal Code;
Count 2: Abducting E.L., a person under the age of fourteen, contrary to s. 281 of the Code;
Count 3: Sexual assault of E.L., contrary to s. 271 of the Code; and
Count 4: Touching for a sexual purpose E.L., a person under the age of fourteen, with a part of his body, to wit: his hands, contrary to s. 151 of the Code.
[2] The charges arose from an incident on December 26, 2011, around 3:00 a.m., when a suspect entered the house at D[...] in Toronto and abducted the five-year-old complainant, who was asleep in an upstairs bedroom. He carried her into the backyard of D[...], removed her pyjamas, and was on top of or bending over her when her father appeared on the scene. The suspect then fled.
[3] The Crown sought to adduce three statements made by Mr. Belbin to the police.
[4] The first statement was made on December 28, 2011. Officers spoke to Mr. Belbin that day after knocking on his apartment door as part of a door-to-door canvas of the neighbourhood following the abduction of the complainant. The defence concedes that this statement was voluntary and is admissible at trial.
[5] The second statement was made on January 13, 2012, when Mr. Belbin attended at the police station at the request of the police. He also provided samples of his DNA at that time.
[6] The third statement was made on February 18, 2012, following Mr. Belbin’s arrest and after forensic testing indicated that his DNA “matched” the male DNA found on the sleeves of the complainant’s pyjama top.
[7] The position of the defence is that the Crown has not established beyond a reasonable doubt that the statements made on January 13 and February 18, 2012, were voluntary. Defence counsel further submits that Mr. Belbin’s s. 7 and s. 10(b) Charter rights were violated and, as a result, the statements should be excluded pursuant to s. 24 (2) of the Charter. The defence also takes the position that the statement made on February 18, 2012, should be excluded on the basis that its prejudicial effect outweighs its probative value.
[8] The position of the defence with respect to Mr. Belbin’s DNA samples is that they were not obtained pursuant to a valid consent, that the seizure of the samples therefore violated his s. 8 Charter rights, and that the samples and the results of the forensic testing on them should be excluded as evidence pursuant to s. 24(2).
[9] The accused did not testify on the voir dire and called no evidence.
[10] Following counsel’s submissions, I ruled that the statements made by Mr. Belbin on January 13 and February 18, 2012, were voluntary, that there had been no violation of his ss. 7 or 10(b) Charter rights, and that both statements were admissible at trial. I also found that the DNA samples were obtained pursuant to a valid consent, and that there was no breach of Mr. Belbin’s s. 8 Charter rights. I indicated to counsel that I would provide the reasons for my ruling at a later date. These are those reasons.
[The remainder of the judgment continues exactly as provided in the source text, preserving all wording, paragraphs, and links.]
GARTON J.
Released: August 28, 2015
COURT FILE NO.: 0270/12
DATE: 2015/08/28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
RYAN ANTHONY BELBIN
Ruling on admissibility of DNA Evidence and statements made by the accused
GARTON J.
Released: August 28, 2015