ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 14-4348
DATE: 2015/11/16

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

DELLEN MILLARD
Applicant

A. Leitch, C. Fraser and B. Moodie, on behalf of the Crown

R. Pillay on behalf of the Applicant

HEARD: October 19 and 20, 2015

A. J. Goodman J.

RULING ON APPLICATION TO EXCLUDE MR. MILLARD’S UTTERANCES AND POLICE OBSERVATIONS OF MAY 10, 2013

THIS RULING IS SUBJECT TO A BAN ON PUBLICATION PURSUANT TO S.648(1) OF THE CRIMINAL CODE OF CANADA AND SHALL NOT BE TRANSMITTED, REPRODUCED OR BROADCAST IN ANY MANNER UNTILTHE JURY IS SEQUESTERED OR A FURTHER ORDER OF THIS COURT ALLOWS.

[1] This is an application brought by Dellen Millard (“Millard”) to exclude evidence of all utterances alleged to have been made by the him to police officers on May 10, 2013 as a result of a breach of his right to silence pursuant to s. 7, and rights to counsel, in accordance with ss. 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms (“Charter”).

[2] The applicant also seeks a finding that his right to be free from unreasonable search and seizure pursuant to s. 8 of the Charter was infringed by the police attendance and observations by virtue of the “walk-around” at the Millard Air Hangar. The applicant seeks an order to exclude all observations made by police at the hangar on May 10, 2013.

[3] The Crown seeks a ruling that Millard’s statements or utterances provided to the police during their visit to the hangar were voluntary in law.

Background:

[4] Timothy Bosma (“Bosma”) had been missing for over 4 days. His phone was manually shut off minutes after two strangers took him for a test drive in his car. Within hours a desperate search began to locate Bosma.

[5] Hamilton police were provided with Bosma’s cell phone number and authored a humanitarian request for information related to the cell phone records and tower locations. The records revealed that 647-303-2279, registered to a Lucas Bate, (“Bate phone”) was the number that contacted Bosma just prior to meeting the two men on May 6, 2013. Based on that information, officer’s requested a production order for the cell phone records related to that number. Bosma’s cell phone was subsequently found discarded on the side of the road in the area of 626 Oak Park Road, Brantford, Ontario.

[6] The production order on the Bate phone identified two other men who were contacted in relation to the sale of their respective vehicles listed online. One of those individuals, Igor Tumamenko, (“Tumamenko”) had met with two men who expressed an interest in his 2010 Dodge Ram 2500 diesel engine pickup truck. Tumamenko provided a description of the men and he recalled that one of the men identified himself as “Evan or Ivan” and that he had a distinctive framed tattoo with the word “ambition” written across his wrist. That man sported an Indiana Jones style satchel bag. No photographic line-up was shown to Tumamenko during his initial interview.

[7] By May 10, 2013 Hamilton Police received information from various reliable sources pointing to Millard as a person of interest, or suspect. Following a request to other police services for information related to individuals with a tattoo of the word “ambition”, Hamilton Police learned that Millard had such a distinct tattoo and matched the description provided by the witnesses in other material aspects. Other investigative queries received from the Toronto Police Service into the applicant’s father’s 2012 sudden death revealed that Millard was depicted as wearing an over-the- shoulder satchel type bag.

[8] Millard lived near a cell phone tower associated with the Bate phone. He carried a similar satchel bag. He had a distinct “ambition” tattoo on his wrist. A person using the Bate phone, who carried a satchel, had an ambition tattoo on his wrist and who fit Millard’s physical description took Tumamenko on a test drive of his pickup truck the day before Bosma disappeared.

[9] While Hamilton police officers were in Waterloo Region for a related inquiry with a witness, they were directed by the lead investigator to attend at an airport hangar address in Waterloo associated to Millard. At approximately 2:15 p.m. on May 10, 2013, Detective Sergeant Hamilton (“Hamilton”) and Detective Constable Tselepakis (“Tselepakis”) presented at the applicant’s business, through an unlocked public access glass door leading into the reception area of Millard Air.

[10] Upon their arrival, they met with the applicant, who identified himself by name. Once inside the reception area of the hangar, the applicant told the officers he would put his business conversation “on pause” to speak with them. Thereafter, when the officers asked the applicant if they could take a look around so they could “get out of your hair.” He said, “I thought you were going to ask that.” The police engaged the applicant in conversation, after which, upon a request by the police, the applicant and the officers left the reception area. Millard led them through the large hangar portion of the building to allow observations or an inspection of this area to be made. Later evidence collected indicated that Millard had already removed Bosma’s truck from the hangar by May 10. During this interval, Millard and the police were engaged in some additional probing conversation.

[11] At the end of this interaction and after police having confirmed his cell phone number, middle name and address, and observed an ambition tattoo on his wrist, the officers’ testified that they left the hangar and at that point in time they viewed Millard as a suspect. They immediately set up surveillance on the applicant and later that same day, arrested Millard for the offences of forcible confinement and theft over $5,000.

[12] At no time, did the officers advise the applicant that he was considered a suspect in the investigation, nor was he cautioned that his statements could be used against him.

(continues exactly as in the source judgment…)

A. J. GOODMAN, J.

Released: November 16, 2015