COURT FILE NO.: CR-12-2328
DATE: 20151019
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
A. Bernstein, C. Coughlin for the Crown
- and -
JASWINDER SINGH, ASOGIAN GUNALINGAM and JORA JASSAL
J. Razaqpur, for the accused Jaswinder Singh; R. Lepore, for the accused Asogian Gunalingam; and F. Davoudi, for the accused Jora Jassal
REASONS FOR RULING
(“MORNINGSTAR” MOTIONS)[^1]
COROZA J.
OVERVIEW
[1] At 4:00 a.m. on November 13, 2011, a male called 911 and reported that he saw something bad at 3068 Ireson Court in Malton. The male stated: “I see something, some people took the-, with some guns over there” and “yeah, I see something over there, I think big trouble there”. The caller then hung up the phone.
[2] The 911 dispatcher immediately classified the call as a high priority emergency call and dispatched the police to the address. The dispatcher broadcasted the call over the radio and sent the following message to the computer terminals in police cruisers:
ML CALLED ON 911 SAID HE SAW SOMETHING VERY BAD AT THIS HOUSE THAT HE SAW SOMEBODY WITH A GUN OR SOMETHING THEN HUNG UP
[3] Police officers attended at the Ireson Crescent address. They discovered Jaswinder Singh urinating in the backyard.
[4] The police officers detained Mr. Singh. Mr. Singh confirmed he lived at the reported address. The police then entered the house, performing a sweep to ensure no one was injured or armed. During the sweep, they found V.B. tied to a bed in a basement room. Mr. Singh was immediately arrested after Ms. V.B. was discovered.
[5] The police noticed a van parked in the driveway of the Ireson house. The plate attached to the van was registered to Nicholas Victorbalaratnam with an address of 3420 Morningstar Drive, Unit 134. The police were informed that three men of South Asian descent had fled the scene.
[6] At 4:45 a.m. on November 13, 2011, three police officers attended at 3420 Morningstar Drive, in search of the registered owner of the van.
[7] The police officers were looking for the owner of a van that was parked in the driveway of the home located at 3068 Ireson Court.
[8] Mr. Gunalingam was present in the Morningstar apartment and answered the apartment door. The police made inquiries about the owner of a van and Mr. Gunalingam told them that he drove the van. He also told them he owned 3068 Ireson Court and was renting it out to three East Indian men. As a result of this information provided and because he fit under the police description for one of the three males, he was arrested.
[9] Before they left the apartment, the police seized a pair of pants that were hanging on a chair in close proximity to Mr. Gunalingam. Cst. Getty, the arresting officer, testified that he seized these pants because he was looking for Mr. Gunalingam’s identification and he had been told by Mr. Gunalingam that he could find his identification in the pants. These pants were then taken to the police station along with Mr. Gunalingam.
[10] At the police station, the police examined the pants and discovered a number of items that are relevant to the prosecution:
a cell phone that was registered under Mr. Gunalingam’s girlfriend’s name;
a bank cheque in Ms. V.B.’s name; and
Ms. V.B.’s driver’s licence.
[11] Mr. Gunalingam was interviewed for about two hours by Cst. O’Connor at the police station. Throughout the statement Mr. Gunalingam asserted that he was not involved in Ms. V.B.’s kidnapping.
[12] Mr. Gunalingam seeks exclusion of the pants, and the items found in the pants, as evidence. He claims that his s.8 rights were breached. He also seeks to exclude any statements provided to police officers on November 13 as he claims that his s.10(b) rights were breached.
[13] The Crown requests that Mr. Gunalingam’s applications be dismissed. The Crown argues that there was no s. 8 breach on these facts because the police officers were entitled to enter the home to preserve life. The Crown acknowledges that Cst. Getty violated Mr. Gunalingam’s s.10(b) rights but argues that the breach was minor and should not result in the exclusion of any statement derived from that breach. Finally, the Crown seeks a ruling that the voluntariness of all statements made to police officers that morning has been proven beyond a reasonable doubt.
[14] For the following reasons, the applications brought by Mr. Gunalingam should be dismissed. I also find that Mr. Gunalingam voluntarily made his statement to the police.
FACTUAL BACKGROUND
[15] Sgt. Hewison testified that she arrived at the Ireson crime scene at 4:20 a.m. Sgt. Hewison was told that a female was tied up in the home and that three South Asian males had fled the scene. At the scene, there was a van in the driveway. The van’s plate was registered to Nicholas Victorbalaratnam with an address of 3420 Morningstar Drive, Unit 134. Sgt. Hewison attended the Morningstar address with Cst. Crook and Cst. Getty.
[16] Once she arrived at the Morningstar apartment building, she directed Cst. Getty to guard the rear of the apartment to prevent anyone from fleeing the home.
[17] Sgt. Hewison knocked on the door of Unit 134. Mr. Gunalingam answered the door. Sgt. Hewison testified that she asked Mr. Gunalingam if he knew who owned the van and she gave him the licence plate number. From her position in the hallway she could see a male and female sitting on a couch.
[18] Mr. Gunalingam told her that he drove the van and that he was living at 3420 Morningstar because his surety lived there. Mr. Gunalingam told her that Mr. Victorbalaratnam owned the van and he gestured towards the male on the couch. Sgt. Hewison then asked if the police could come inside to speak further about the ownership of the van. According to Sgt. Hewison, Mr. Gunalingam let the police in. She testified that she wanted to speak to Mr. Victorbalaratnam to confirm that he was the registered owner of the van. She confirmed Mr. Victorbalaratnam’s date of birth after speaking to him.
[19] Once she was inside the apartment, Sgt. Hewison testified that she advised Mr. Gunalingam that there was an incident at the Ireson residence. According to Sgt. Hewison, Mr. Gunalingam told her that he owned 3068 Ireson Court but he was renting it out to three East Indian males.
[20] Sgt. Hewison decided that Mr. Gunalingam and Mr. Victorbalaratnam should be arrested and she directed Cst. Getty to arrest both males for kidnapping. She testified that the grounds for arresting Mr. Gunalingam included:
Mr. Gunalingam’s admission that he drove the van in the driveway found at Ireson;
Mr. Gunalingam’s admission that he owned the Ireson residence; and
that he matched the description of the males that had fled the scene.
[21] She recalled that Cst. Getty had asked Mr. Gunalingam about identification and that Mr. Gunalingam told Cst. Getty that his identification was in his pants that were hanging on a chair. Cst. Getty seized the pants as they were leaving the apartment.
[22] Sgt. Hewison also adopted her testimony from a previous occasion. She previously testified that she seized the pants as potential evidence.
[23] I found the evidence of Sgt. Hewison to be consistent and believable. There was nothing about it that struck me as contrived. I did not detect any tendency for her to rationalize her evidence.
[24] Cst. Getty testified that he arrested Mr. Gunalingam at 4:55 a.m. for the offences of forcible confinement, kidnapping and extortion. He testified that he then asked Mr. Gunalingam for a piece of identification because, up to that point, they only had verbal identification from Mr. Gunalingam. According to Cst. Getty, Mr. Gunalingam told him that his identification was in a pair of pants hanging on a chair in the dining room. Cst. Getty seized the pants and felt that there was a wallet contained in the pants by squeezing them. He then grabbed the pants and escorted Mr. Gunalingam into his police cruiser.
[25] Cst. Getty testified that while Mr. Gunalingam was seated in the police cruiser, he read Mr. Gunalingam his rights from his notebook. Cst. Getty testified that he read from a pre-printed form attached to his notebook.
[26] In response to the officer providing information about the legal aid plan and the toll free number to get in touch with duty counsel, Mr. Gunalingam told Cst. Getty, “I don’t understand why I am arrested”.
[27] Cst. Getty testified that as a result of that response, he explained to Mr. Gunalingam that the police located a female in the basement of the Ireson home. Because he had told them he owned this residence, he was being placed under arrest.
[28] Cst. Getty testified that, after reading Mr. Gunalingam his rights to counsel, he asked Mr. Gunalingam if he understood everything that had been read to him. According to Cst. Getty, Mr. Gunalingam told the officer that he understood.
[29] When the officer asked Mr. Gunalingam if he wanted to speak to a lawyer now, Mr. Gunalingam told him: “No, I will talk to the detective at the station”.
[30] While enroute to the police station, Cst. Getty testified that he searched the pants, pulled a wallet out of the pants and retrieved Mr. Gunalingam’s driver’s licence out of the wallet. He testified that he placed Mr. Gunalingam’s driver’s licence in his notebook, which was in his right breast pocket.
[31] Once they had arrived at the police station, Mr. Gunalingam was “paraded” before the officer in charge of the station, Staff Sgt. Murray, and a booking officer, Cst. Jimenez. The entire booking process was videotaped and filed as an exhibit. During the process, Cst. Getty and Sgt. Murray can be seen pulling out items from the pants.
[32] Mr. Gunalingam was eventually placed in a cell with a toilet and sink. He was removed from the cell and eventually interviewed by Cst. O’Connor. The interview takes place between 7:07 a.m. and 9:16 a.m.
SEIZURE OF THE PANTS
Police did not Violate Section 8
[33] Mr. Gunalingam argues that the seizure and search of the pants was unconstitutional. I disagree. In my view, the seizure and search of the pants was authorized as a valid search incident to arrest.
[34] A search incident to arrest is lawful if there is a valid arrest and the search is conducted for a valid purpose. A search incident to an arrest is an exception to the ordinary requirements for a reasonable search because it requires neither a warrant nor independent reasonable and probable grounds.[^2]
[35] Mr. Gunalingam has not challenged the lawfulness of his arrest. Cst. Getty testified that he seized the pants after he arrested Mr. Gunalingam because he was looking for identification to confirm his identity. If I accept his evidence that this was the purpose for seizing the pants, then that is a valid objective. A search for identification to confirm the identity given by an arrestee is related to the objectives of the proper administration of justice. Such a search has been held to amount to a valid objective for a search incident to arrest.[^3]
[36] According to Cst. Getty, after he arrested Mr. Gunalingam, he asked Mr. Gunalingam if he had any identification. Mr. Gunalingam told him that his identification was in his pants. The pants were in plain view, hanging on a chair near the location of the arrest. Cst. Getty testified that he removed the pants from the chair, squeezed the pants and felt a wallet. He then took the pants and Mr. Gunalingam out of the apartment to his police cruiser.
[37] According to Cst. Getty, at some point between the Morningstar apartment and their arrival at the police station, he retrieved Mr. Gunalingam’s driver’s licence from a wallet in the pants. He placed the driver’s licence in his notebook which was in his right breast pocket and he returned the wallet back into the pants. According to Cst. Getty, he retrieved Mr. Gunalingam’s identification from the pants while he was enroute to the station.
[38] Mr. Lepore argues that I should reject Cst. Getty’s testimony and accept the testimony of Ms. Nicholas regarding what occurred in the Morningstar apartment. Ms. Nicholas confirms that the police retrieved Mr. Gunalingam’s pants from a table and that the police searched the pants. She also testified that the police retrieved a wallet that did not belong to her or Mr. Victorbalaratnam. This item was on the table near the pants. According to Ms. Nicholas, the police peered inside the wallet. However, she acknowledged that she did not see the police take anything out of the wallet.
[39] Mr. Lepore argues that if I accept this evidence, then I should find that the police had located Mr. Gunalingam’s identification in the residence. If I accept this evidence, I should conclude that there was no lawful basis to seize the pants because the confirmation of Mr. Gunalingam’s identification had already crystallized.
[40] I find Mr. Lepore’s argument unpersuasive for the following reasons.
[41] First, while I find Ms. Nicholas to be a credible witness, I find her ability to recall certain details of what occurred in the apartment suspect. For example, she testified that there were four officers in the apartment when, in fact, there is no evidence that there were more than three officers in the apartment.
[42] Second, even if I accept her evidence, there would be gaps in the narrative of events. In her version of events, the police did not take anything out of the wallet. Of course, Ms. Nicholas was also unable to say whether the police saw anything when they peered into the wallet. I therefore have no evidence that the police secured or confirmed Mr. Gunalingam’s identification when they seized and peered into the wallet.
[43] I note that Cst. Getty was never asked about this version of events and Cst. Getty was not questioned about the location of the driver’s licence within the wallet. I am not prepared to conclude that Mr. Gunalingam’s identification had been located by Cst. Getty before they left the apartment.
[44] In conclusion, I accept that Cst. Getty was looking for Mr. Gunalingam’s identification after he arrested him. I also accept that Cst. Getty seized the pants after Mr. Gunalingam told him that his identification was in his pants. Cst. Getty was never challenged as to his assertion that Mr. Gunalingam told him that his identification was in his pants. I am satisfied that Cst. Getty retrieved the identification from the pants after he had left the apartment and that he had lawful custody of the pants when he arrived at the station. In my opinion, the search and seizure of the pants was for a valid purpose incident to arrest.
[45] I am mindful that there is a gap in Cst. Getty’s evidence. Mr. Lepore argues that because the wallet and the driver’s licence cannot be found, this should impact on the reliability of Cst. Getty’s evidence. Mr. Lepore relies on the fact that the booking video does not confirm that there was a wallet in the pants when Mr. Gunalingam arrived at the police station. I agree with counsel that it is difficult to reconcile the assertion that the wallet was placed inside of the pants when the search of the pants at the station does not reveal a wallet in those very same pants. However, there are some aspects of Cst. Getty’s testimony that are confirmed by the video. For example, the video does confirm that Cst. Getty took out his notebook from his right breast pocket and there does appear to be an identification card attached to his notebook.
[46] I cannot speculate as to what happened to this wallet. I have two witnesses (Cst. Getty and Ms. Nicholas) who have testified that there was a wallet. The video does not show a wallet being pulled out of the pants and there is no explanation as to the whereabouts of this wallet. The absence of the wallet remains a mystery.
[47] For the purposes of this ruling, I agree with Mr. Bernstein that the absence of the wallet is not material to the issue that I must decide. The issue I must decide is whether the police were authorized to seize the pants to search for identification. I am satisfied that the police were authorized and I find no s.8 Charter breach.
The Pants Would Not be Excluded Pursuant to S. 24(2)
[48] Even if there had been a breach of s.8 of the Charter, this is not a case where the evidence should be excluded. I will deal with the issue of s. 24(2) of the Charter briefly.
[49] In my view, the three-part test for exclusion or admission set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32 applies to this case in the following way.
Seriousness of the Police Conduct
[50] The seizure and search of the pants was not a serious breach. Cst. Getty’s decision to seize the pants strikes me as being very far from flagrant or reckless behaviour. Mr. Gunalingam had been arrested for a serious offence. The grounds for arrest are not challenged in this application. The police were told that the pants belonged to Mr. Gunalingam. If they had overstepped their authority by seizing the pants, in my view, given the circumstances, the state conduct here was at the low end of the continuum of misconduct.
Impact of the Breach on Gunalingam’s Section 8 Rights
[51] The impact of the s.8 breach on Mr. Gunalingam’s rights is not significant. I accept that Mr. Gunalingam has a reasonable expectation of privacy in his clothing. However, this was not an intrusive search that raised any concerns about the police violating Mr. Gunalingam’s dignity. The pants were seized from the house and taken to the police station. Prior to booking him into a cell, the contents of the pants were taken out and an inventory was created. The entire process was videotaped and transparent. Again, the police had reasonable and probable grounds to arrest him for kidnapping and he was lawfully in their custody.
[52] Furthermore, in my opinion, the evidence would have been discovered in any event because I am satisfied that the police would not have left the pants in the home. If evidence is discoverable, regardless of the Charter breach, it attenuates the impact of the breach. While a finding of discoverability does not automatically lead to admission, it must be considered. The police had arrested Mr. Gunalingam. The police had also been told by Ms. Nicholas that the pants on the table were Mr. Gunalingam’s. Sgt. Hewison testified that the pants were seized as potential evidence. The discoverability of evidence is a valid objective for a search incident to arrest. I am confident that the pants would not have been left in that home when they took Mr. Gunalingam to the station because the police would have turned their minds to seizing the pants as evidence. Sgt. Hewison’s evidence on previous occasions makes it clear that she believed that the pants were evidence related to the arrest.
Society’s Adjudication on the Merits
[53] It is obvious that the discovery of Ms. V.B.’s identification and a cheque in her name is important to the Crown’s case. It is also reliable evidence that existed prior to the breach. There is a strong societal interest in having a trial on kidnapping charges with reliable evidence. That factor must be kept in the balance along with the public interest in law-enforcement that reflects Charter values.
[54] When I combine all those factors I am not persuaded that the evidence would be excluded if there had been a violation of Mr. Gunalingam’s Charter rights.
THE THREE STATEMENTS
[55] The Crown seeks to introduce the following three statements:
- the pre- arrest statement made by Mr. Gunalingam which included his
admission that he drove the van with licence plate 719 8ZP and that he was the owner of 3068 Ireson Court but rented out the property to three East Indian males;
- the post-arrest statement that Mr. Gunalingam made to Cst. Getty
telling the officer that his identification was in his pants; and
- the interview of Mr. Gunalingam by Cst. O’Connor.
Police Did Not Violate Section 10(b)
[56] Mr. Lepore argues that all three statements were obtained from Mr. Gunalingam in violation of s.10(b).
[57] The Crown argues that statements one and three were not obtained in violation of the Charter. The Crown concedes that statement two was elicited by Cst. Getty in violation of the Charter. However, the Crown argues that the violation is not a serious one and that the application of the factors set out in Grant would not lead to exclusion of this evidence pursuant to s.24(2) of the Charter.
[58] I agree with the Crown.
1. The Pre-Arrest Statement
[59] In my view, Mr. Gunalingam was not detained for constitutional purposes until he was arrested by Cst. Getty. Up to his detention, the police were not required to provide Mr. Gunalingam with his s.10(b) rights. Accordingly, the statements Mr Gunalingam made to Sgt. Hewison were not obtained in violation the Charter.
[60] The Supreme Court of Canada has held that absent exigent safety concerns, the s.10(b) caution must be given immediately to persons subject to the common law power of investigative detention.[^5] There are three categories of detention: (1) psychological restraint (with legal compulsion); (2) psychological restraint (without legal compulsion); and (3) physical restraint.
[61] Absent detention, police enjoy considerable freedom in questioning suspects. However, Parliament and the courts have sanctioned a state of affairs in which police are permitted as a general rule to approach people and ask them questions without any particularized suspicion and without any need to inform them of their legal status or rights.
[62] Under Grant, the determining issue is whether the police conduct would cause a reasonable person to conclude that he/she was not free to go and had to comply with the police direction or demand.
[63] Not every interference with liberty attracts Charter scrutiny. Only the person whose liberty is meaningfully constrained genuinely requires the additional Charter rights. Detention therefore arises when the deprivation of liberty may have legal consequences.
[64] The following factors lead me to conclude that Mr. Gunalingam’s argument must fail.
[65] First, the background leading to the police attending Morningstar is essential. The police investigated the discovery of a woman at the Ireson home. They responded to a 911 call and would have been entitled to approach bystanders at the scene. They noticed a van in the driveway with a registered owner and attended the Morningstar address to obtain information about the van pursuant to their investigation. I do not find that the police’s purpose in approaching the Morningstar residence was adversarial towards Mr. Gunalingam. I agree with the Crown that, when they approached the Morningstar residence, Mr. Victorbalaratnam was the person of interest. They had no grounds to arrest Mr. Gunalingam at the time he opened the door, nor was he a suspect.
[66] When Mr. Gunalingam opened the door and spoke to Sgt. Hewison, Mr. Gunalingam was not deprived of his liberty.
[67] Second, based on the evidence, I find that the initial encounter, involving Sgt. Hewison standing in the hallway of the Morningstar residence, was brief. I accept Sgt. Hewison’s evidence that the officers were invited into the apartment by Mr. Gunalingam after they asked a few questions in the hallway.
[68] Third, there was no physical contact between the officers and Mr. Gunalingam. I do not find any evidence on this record suggesting that Sgt. Hewison was acting aggressively or uttered any forceful words. Thus, I do not find any evidence of conduct that would cause a reasonable person to conclude that Mr. Gunalingam’s right to choose how to respond was removed.
[69] When I take all of these factors into account, I find that a realistic appraisal of the entire interaction, as it developed, did not amount to detention. The police were responding quickly and effectively to a rapidly evolving situation. The police had just discovered Ms. V.B. in the basement of the Ireson residence. They were attempting to respond quickly to a lead because a van parked in the driveway of the home was registered to a male who resided at Morningstar. I also note that Mr. Gunalingam did not testify on the voir dire. Although, this is not fatal to his application, I find that there is no objective evidence on this record that would lead me to conclude he was detained.
2. The Post-Arrest Statement to Cst. Getty
[70] Cst. Getty arrested Mr. Gunalingam for the offences of kidnapping, forcible confinement and extortion. The Crown concedes that when Cst. Getty asked Mr. Gunalingam if he had any form of identification before reading him the s.10(b) caution, this was a violation of Mr. Gunalingam’s rights. I therefore find a violation of s. 10(b). However, I am not satisfied that Mr. Gunalingam has discharged his onus on the s.24(2) application to exclude this statement.
The Post-Arrest Statement Should Not Be Excluded Pursuant to S. 24(2)
Seriousness of the Breach
[71] I find that the police breached Mr. Gunalingam’s s.10(b) right by not complying with part of their informational duty. However, I also find that this was not a serious breach. The police complied with their informational obligations pursuant to s. 10(a) of the Charter. The violation of the s. 10 Charter rights lasted very briefly because Cst. Getty immediately discharged his responsibilities when he took Mr. Gunalingam to his police cruiser. I do not find that the question asked by Cst. Getty was designed to elicit a statement implicating Mr. Gunalingam in the kidnapping. In my view, the question flowed naturally from the arrest and I find that Cst. Getty did not act intentionally or maliciously thwart Mr. Gunalingam’s rights. Indeed, it was an honest mistake made in a difficult, rapidly evolving investigation in the early morning hours of November 11. I find that the relative lack of seriousness of the s.10 breach militates in favour of admission.
Impact on the Charter Protected Interests of the Accused
[72] Section 10(b) violations implicate a detainee’s right to make a meaningful and informed choice about whether to speak, whether to be silent and, most fundamentally, s. 10(b) protects against testimonial self-incrimination. As the majority of the Supreme Court noted in Grant, at para. 95, these rights protect the individual’s liberty and autonomy. Thus, violation of these fundamental rights tends to militate in favour of exclusion. However, the Grant majority also recognized that some circumstances may attenuate the impact of such a Charter breach. I agree with the Crown that Mr. Gunalingam would not have acted any differently had he been given his right to counsel prior to being asked to confirm his identity. He had been told he was being arrested for serious offences. He was asked one single question to confirm his identity and there was no attempt to question him about the offence in the apartment. However, as the Crown points out, when he subsequently provided a statement to Cst. O’Connor, Mr. Gunalingam appeared concerned and very cooperative with the police. At the time of his arrest, he was on bail for another offence. He appeared to be preoccupied with his bail status and his innocence in order to avoid pre-trial custody. I find that the absence of the s.10(b) caution before he was asked to confirm his identity had no impact on Mr. Gunalingam because he was making every effort to be cooperative to the police because of his concern about his bail.
Society’s Interest in an Adjudication on the Merits
[73] I am satisfied that Mr. Gunalingam’s statement was fully voluntary and was not coerced in any way. It was prompted by a completely natural and open-ended question from the police to confirm his identity. I find Mr. Gunalingam’s statement, which confirmed that his identification was located in the pants, to be reliable.
[74] There is no general rule that a statement obtained in violation of a Charter right, must automatically be excluded. I find that the police violation was inadvertent, that the police acted in good faith, and that Mr. Gunalingam would have acted the same had the breach not occurred. If the statement was admitted, I would not categorize the breach as sufficiently serious to the extent that it would send the message the justice system condones serious state misconduct.
3. The Video Interview by Cst. O’Connor
[75] Prior to meeting Cst. O’Connor, Cst. Getty read Mr. Gunalingam his rights when he was seated in the police cruiser. I find that Cst. O’Connor’s statement was not obtained in violation of s.10(b) of the Charter for the following reasons.
[76] First, I am satisfied that when Mr. Gunalingam was arrested Cst. Getty provided him with his right to counsel and a caution. I am also satisfied that Mr. Gunalingam told the officer that he did not wish to speak to duty counsel or a lawyer.
[77] I found Cst. Getty to be a straightforward witness on this issue. What follows is an excerpt from Cst. Getty’s cross-examination:
Crown: Q. Okay. Fair enough. So you - you take him through his right to counsel. Your entry in your notebook is to - I have 2(a) D-U D-Y-U, is that...
Cst. Getty: A. Yes, sir.
Q. ...right? And what does 2(a) refer - refer to?
A. At the front of our notebooks is the rights to counsel. So in every notebook I number my rights to counsel.
Q. Okay. And can you read to - what you would - what you’ve noted as 2(a)?
A. Yes, sir. So 2(a) would be “You have the right to retain and instruct counsel without delay”.
Q. All right. And - and 2(b)?
A. 2(b) is, “You have the right to telephone any lawyer you wish”.
Q. And 2(c)?
A. “You also have the right to free advice from a Legal Aid lawyer”.
Q. And 2(d) - sorry, (d), yeah, 2(d)?
A. “If you are charged with an offence you may apply to the Ontario Legal Aid Plan for legal assistance at 1-800-265-0451. It’s a toll free number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice right now”.
Q. All right. And with respect to 2(a), your – the response you note in your notebook is, yeah, Y-E-A-H?
A. Yes, sir.
Q. And similarly for 2(b) and 2(c), is that correct?
A. Yes, sir.
Q. Now, for 2(d) the response you receive is, “I don’t understand why I’m arrested”, correct?
A. Yes, sir.
Q. All right. And then your next entry is you explain to male the circumstances of the arrest and I think you told my friend yesterday that you follow up after you explain the circumstances of the arrest and why he was being arrested, you ask him if he understood why he was being arrested, is that correct?
A. Yes, sir.
Q. All right. And then 2(e) is, “Do you....” - what was – sorry, what is 2(e)?
A. 2(e) is do you understand?
Q. Sorry, I have D-Y-U all.
A. It’s do you understand everything about that I just read.
Q. Okay. All right. Now, I’m going to suggest that that is - those are the only things that you said to Mr. Gunalingam with respect to his right to counsel. You didn’t - you didn’t elaborate or explain or simplify anything you read to him, is that correct?
A. That’s not correct, but....
Q. It’s not correct?
A. No.
Q. You - you did?
A. Well, he understood. I - was under my opinion that he understood what I read to him.
Q. Okay. I - I understand what your opinion was, but I’m - what I’m asking you is did you do anything other than read from the back of your notebook with respect to Mr. Gunalingam’s right to counsel, the availability of Legal Aid?
A. If he had indicated that he didn’t understand, I would’ve went through further details of explaining.
Q. All right. My question is you didn’t do that though, right?
A. I didn’t believe I had to.
[78] I am not persuaded by Mr. Lepore’s argument that, from an informational perspective, the reading of the right to counsel was meaningless because Cst. Getty failed to properly communicate the right to counsel to Mr. Gunalingam.
[79] Counsel relies on the Court of Appeal’s decision in R. v. Vanstaceghem[^6] which held that where “special circumstances” exist, an arresting officer has the obligation to take the extra step of determining whether the accused understands his or her rights.
[80] Mr. Gunalingam did not testify on this application. Furthermore, my overall sense of Cst. Getty’s evidence is that Mr. Gunalingam did not express a lack of understanding of English, nor did he otherwise present as someone who was confused by the process. I found Cst. Getty to be an impressive witness on this point. Mr. Gunalingam’s question, “I don’t understand why I’m arrested”, does not mean that “special circumstances” arose. Mr. Gunalingam’s question is naturally asked by anyone professing to be innocent of any wrongdoing. Such a question does not demonstrate that the police failed to respond to questions dealing with right to counsel.
[81] When I consider that Cst. Getty advised Mr. Gunalingam his right to counsel sentence by sentence from a standard police issued card and that Cst. Getty asked Mr. Gunalingam if he understood everything he had read, I am satisfied that Mr. Gunalingam was given his s. 10(b) rights in a meaningful and comprehensible manner.
[82] Second, Mr. Gunalingam asserted on video that he understood his rights. I accept that English is not his first language. However, that does not mean that he did not comprehend what the police had told him regarding his rights. Mr. Gunalingam made the following statements to Cst. O’Connor:
GUNALINGAM: Yeah sorry I, i-, can you explain it why charges come for that then?
OFFICER: Yeah and I’ll speak that to you and my understanding is, is that you told the officer that arrested you that you didn’t want duty counsel or a lawyer that you just wanted to speak with a police officer?
GUNALINGAM: Yeah because I am straightforward, I have to talk to the police officer for this stuff so straight, straight me alright so…
GUNALINGAM: …I don’t wanna get the charges or if you can put the charges and I don’t have to go bail condition or anything because trust me, whatever the bail I came from I just working (inaudible) the money.[^7]
[83] At no time during the video did Mr. Gunalingam tell Cst. O’Connor that he did not understand what was being told him. My impression of Mr. Gunalingam on the video is that he had no difficulty in responding to Cst. O’Connor’s questions and he did not hesitate or ask Cst. O’Connor to repeat questions. Nor did Cst. O’Connor have to speak slowly throughout the interview. Upon reviewing the video, I found that the interview was conducted in English and that Mr. Gunalingam was quite comfortable in responding to Cst. O’Connor in English.
[84] Finally, although there was a breach conceded by Crown counsel with respect to Cst. Getty’s actions in the apartment, I have serious reservations whether there is a “nexus” between that breach and the subsequent statement taken by Cst. O’Connor and the video. Section 24(2) requires that the subsequent statement be “obtained in a manner” that infringed the Charter. By the time that Cst. O’Connor interviewed Mr. Gunalingam, he had been read his right to counsel and he waived the right. Cst. Getty had not elicited any statements in the police cruiser or at the police station. Cst. Getty had not participated in the interview of Mr. Gunalingam at the police station. I have found that when he was in the police cruiser, Cst. Getty provided Mr. Gunalingam with his rights.
[85] I dismiss Mr. Gunalingam’s application to exclude statements.
The Statements Are Voluntary
[86] I am also satisfied that the Crown has proven the voluntariness of all three statements beyond a reasonable doubt.
[87] First, there is absolutely no evidence on this record of any threats or promises made by any of the officers who obtained statements. I have no evidence that Sgt. Hewison or Cst. Getty were aggressive during their interaction with the accused at the Morningstar residence. I find that the officers were both calm and collected.
[88] During the video interview, Cst. O’Connor’s demeanour ranged from calm and patient to more aggressive and impatient. However, the atmosphere of that interview was not so oppressive as to support an inference that Mr. Gunalingam’s will was overborne.
[89] I have considered that Mr. Gunalingam did ask for water on more than one occasion and that he was not given water until over an hour after his interview began. However, I do not find that an offer to provide water and the provision of water to Mr. Gunalingam was a quid pro quo offer to cooperate with the police.
[90] I have also considered that the accused was shaking throughout most of the interview. Cst. O’Connor testified that Mr. Gunalingam was shaking because he was nervous, that it was not cold in the room and that the officer’s own attire on video demonstrated it was not cold in the room. I do not take anything of Cst. O’Connor’s assertion; what may be a cold room temperature for one person may be warm for another. Nonetheless, when I view the video, I do not find that Mr. Gunalingam’s state was one where his will was overborne. Mr. Gunalingam did not make any requests for additional clothing or a blanket. He did make a request for his glasses and water, which were both provided to him during the interview.
[91] Second, I am also satisfied that Mr. Gunalingam was sufficiently aware of what he was telling the police and that he understood that his statements could be used to his detriment. He was told he could speak to a lawyer. He told Cst. Getty that he did not need to speak to a lawyer and he candidly confirmed this with Cst. O’Connor because he was a “straightforward” individual.
[92] Mr. Gunalingam was not a fluent English speaker, but he spoke English well and was able to understand and respond to questions. Mr. Gunalingam had no problems asking for questions to be repeated or clarified numerous times throughout the interview when he did not hear or understand a question.
[93] In this case, I am satisfied that Mr. Gunalingam knew exactly what he was giving up when he declined access to counsel before he spoke to Cst. O’Connor.
[94] The content of the statement makes it clear that Mr. Gunalingam was more concerned about the allegations and wanted to profess his innocence immediately. He did this when Cst. O’Connor was giving him a caution at the outset of the interview. I am satisfied that he knowingly engaged in dialogue with Cst. O’Connor believing that it was better to be straightforward with the officer because of his outstanding charges. Mr. Gunalingam put it this way:
GUNALINGAM: …I don’t wanna get the charges or if you can put the charges and I don’t have to go to bail condition or anything because trust me, whatever the bail I came from I just working (inaudible) the money
GUNALINGAM: Right? So that’s (inaudible) but I don’t know why they come for me but I ask them what’s the problem. I came forward what’s, you can show me what’s that so I can come and talk to them.
OFFICER: Okay
GUNALINGAM: You know?
OFFICER: Well I can’t make any promises and I can’t guarantee you anything or I can’t tell you that I can or can’t do certain things for you.
GUNALINGAM: Okay.
OFFICER: Okay? All I ask…
GUNALINGAM: Mm-hmm.
OFFICER: …is that I will tell you what I know and I ask that you tell me the truth in what you know?
GUNALINGAM: Yeah that’s what I’m saying.
OFFICER: Right?
GUNALINGAM: Yeah.
OFFICER: That’s a-, that’s all we can ask for in life right?
GUNALINGAM: That’s, that’s…
OFFICER: Is the truth.
GUNALINGAM: True.
OFFICER: Right?
GUNALINGAM: I’m, I’m gonna-, I wanna to tell you the truth.[^8]
CONCLUSION
[95] I have reached the following conclusions:
i) Mr. Gunalingam’s application to exclude the pants seized from the Morningstar apartment is dismissed;
ii) Mr. Gunalingam’s application to exclude any statements made to Sgt. Hewison prior to his arrest is dismissed;
iii) The Crown concedes that Cst. Getty violated Mr. Gunalingam’s Charter rights by asking him for identification prior to reading him his right to counsel. However, I agree with the Crown that this breach was not serious and I would dismiss the application to exclude this statement;
iv) The application to exclude the statement to Cst. O’Connor is dismissed; and
v) I am satisfied that the Crown has also proven the voluntariness of any statement made to a police officer beyond a reasonable doubt.
Coroza J.
Released: October 19, 2015
[^1]: I dismissed the applications with reasons to follow on November 3, 2014. The trial continued and ended on June 2, 2015.
[^2]: See the useful summary provided by Durno J. in R. v. Bacchus, 2012 ONSC 5082.
[^3]: See R. v. Nunnery, [2006] O.J. No. 4199 (S.C.J.).
[^4]: R. v. Grant, 2009 SCC 32.
[^5]: R. v. Suberu, 2009 SCC 33.
[^6]: (1987), 1987 6795 (ON CA).
[^7]: Underlining added. Transcript. November 13, 2011 video tape interview.
[^8]: Underlining Added. Transcript. November 13, 2011 (Video Interview) pp. 9 to 10.