FRIDAY, OCTOBER 2, 2015

CITATION: R. v. Asipillai, 2015 ONSC 6881

R U L I N G

Dawson J. (Orally):

The applicant, Senthuran Anantharajah, and his father, Anantharajah Asipillai, are charged with offences related to the use of a forged or fraudulent passport, contrary to ss. 57(1) and 57(2) of the Criminal Code, and with offences contrary to s. 126 of the Immigration and Refugee Protection Act.

The s. 126 offences allege that they made misinterpretations to Canada Border Services officers engaged in trying to determine the admissibility into Canada of a young person. That young person was attempting to enter the country at Pearson International Airport after arriving on a flight from India. He had previously flown from Sri Lanka to Mumbai. The young person was traveling with the applicant’s father. He was posing as the applicant’s brother, Kogulan, and was in possession of a Canadian passport which bore the picture of the young person, but represented that he was Kogulan Anantharajah, which was untrue.

The applicant was waiting in the arrivals area of Terminal 1 to meet his father and the young person. He came into contact with the CBSA officers who were trying to verify the identity of the young person. At that point the young person and the applicant’s father were still in the immigration secondary inspection area of the terminal.

In these pre-trial motions the applicant challenges the admissibility of his utterances to the CBSA officers on voluntariness grounds and on the basis of s.10(b) of the Charter. He also seeks the exclusion of a number of documents, which he either produced to the officers, or which were found by the officers on his person, on the basis of alleged violations of s.8 of the Charter.

As the trial is about to proceed before a jury, time is short. There is some complexity to the interplay between the factual and the legal issues. In order to deal with the application expeditiously, I will work my way through the scenario presented by the evidence in chronological order with some comment on the issues I will later analyze.

Counsel agreed that the motion should be dealt with on a blended basis. Of course, the onus is on the applicant to establish any Charter violations on a balance of probabilities. The onus is on the Crown to establish the voluntariness of any statements beyond a reasonable doubt.

However, to the extend the applicant’s s.8 argument turns on the validity of his consent to a search, the Crown has the onus to establish the validity of any waiver of the applicant’s rights on a balance of probabilities as described in R. v. Wills, 1992 2780 (ON CA), [1992] O.J. No. 294 (C.A.), at para. 69.

The Evidence

The Crown called two Canada Border Services officers on the blended voir dire. The applicant did not testify or call any evidence.

BSO Dennis Chin-Sang and BSO Jamal Qazi were working as part of a roving immigration enforcement team together with BSO Sullivan on March 17^th, 2013. The applicant’s father, Anantharajah Asipillai, and the young person were the last two passengers off a flight the officers were roving.

Originally the officer’s attention was drawn to the battered nature of a permanent resident card provided by Anantharajah Asipillai. Eventually, however, the focus became whether the young person was Kogulan Anantharajah, the name on the passport the youth was carrying. This issue arose because the young person did not appear to speak English or have certain knowledge about Canada that one would expect if he was a Canadian citizen, as the passport indicated. The applicant’s father and the young person remained within the secure secondary immigration area while the officers made various inquiries concerning the identity of the young person without success.

Officer Qazi testified that the officers decided to try and locate anyone who was waiting to meet the passengers they were dealing with. When a page on the public address system at the airport was unsuccessful, Officer Qazi went to the arrivals area and approached people who appeared to possibly be Sri Lankan. He approached the applicant who said he was waiting for his father and his brother.

Officer Qazi said they were in the immigration area and that the officers dealing with them had concerns about their identity and their seeking entry into Canada.

According to the uncontradicted evidence of Officer Qazi, the applicant readily agreed to come back to the immigration area and clarify any concerns the officers had. Qazi testified the applicant said he was “more than happy” to do so and to answer any additional questions. They then proceeded to the controlled entry door to the public area of the immigration section.

Given this uncontradicted evidence, which I accept, and the other evidence I will review, I am unable to conclude that the applicant was detained at any point during the time when he was in the immigration secondary area on this first occasion. He was in the secondary area for about one half hour to 45 minutes on this occasion.

In making this decision on detention I have applied the principles discussed on this subject in R. v. Grant, 2009 SCC 2; R. v. Suberu, 2009 SCC 33; and R. v. Moran (1987), 1987 124 (ON CA), 36 C.C.C (3d) 225 (Ont. C.A.). I previously summarized those principles in R. v. Osborne, 2011 ONSC 2202, at paras. 21-22.

Qazi used his pass card to buzz himself and the applicant into the public part of the secondary immigration area. They then took an elevator down to a public reception area where the applicant was asked to take a seat. Qazi then went to a more secure area and told the other officers he had found a family member. Qazi testified that this was at around 5:00 p.m. Qazi testified that had no more involvement with the applicant until around 8:00 p.m.

At this point, Officer Chin-Sang went to speak to the applicant in the reception area. In his evidence he said the applicant had answered a page. I conclude that while a page had been made, Chin-Sang was unaware or did not recall that Qazi had located the applicant.

Officer Chin-Sang said that the applicant identified himself with a student identity card. The officer asked the applicant to identify the passengers and, if it is not explicit, it is implicit in his evidence that he took the applicant into the secure area to do so. He told the applicant that there was not sufficient evidence that the young person was a Canadian citizen.

The applicant accompanied Officer Chin-Sang so that he could view the passengers. Chin-Sang asked the applicant if he could identify them. The applicant said they were his father and his brother.

Officer Chin-Sang testified that he was still not satisfied about the young person’s identity so he asked the applicant whether the applicant could get further documentation to clarify the young person’s identity. Officer Chin-Sang acknowledged that he had some suspicions at this point. However, he gave evidence about the limited nature of his jurisdiction. He did not believe he had jurisdiction to investigate a citizen who was not seeking admission to Canada. He said that his focus was entirely on investigating the identity of the young person who was attempting to enter Canada.

The applicant initially said that due to heavy traffic conditions it would be difficult for him to get the documentation. Chin-Sang told the applicant the officers needed the documents. In his examination in-chief, Chin-Sang said he asked the applicant for more documentary proof and asked whether he could get other documents.

In cross-examination, Officer Chin-Sang clarified that the applicant asked if there were any other documents that he could bring in order to help. When the officer was challenged about this apparent change in emphasis in his evidence during further cross-examination, he was able to refer to a note in a statutory declaration he completed close to the time of the events. The note was consistent with the officer’s testimony. He said he did not remember the details of the conversation at first, but had remembered enough about it to correct suggestions being made to him in cross-examination by reference to the note.

I am satisfied that the officer’s recollection in cross-examination, as refreshed from the note, is accurate. While the other officer was seeking further documentation to clarify the identity issue, I accept his uncontradicted testimony that, despite traffic concerns, the applicant was also freely offering to retrieve additional documents to allay the officer’s concerns. I would observe that such a stance by the applicant was consistent with his already having falsely identified the young person as his brother, Kogulan. When the applicant did that he was at least attempting to assist the young person in gaining entry into Canada under false pretenses.

Officer Chin-Sang testified that the applicant left to get the further documentation at about 5:30 p.m. The applicant returned to the immigration secondary area at approximately 7:30 p.m. Officer Chin-Sang said that after his return, the applicant spoke mostly to officer Qazi.

However, Chin-Sang went on to describe three documents that he said were provided by the applicant. The first was a citizenship card for Kogulan Anantharajah, which is Exhibit 2. There was also a birth certificate and a student ID card in the name of Kogulan Anantharajah. The passport and the citizenship card contained the same biographical information, but Officer Chin-Sang concluded that the photographs on the documents were not of the same person. Officer Chin-Sang said he did not use the other two documents.

The evidence about precisely how, when and by whom these documents were acquired is somewhat unsatisfactory. The most important document of the three Chin-Sang referred to is the citizenship card which Chin-Sang compared to the passport. There is no evidence that it was officer Qazi who received that document from the applicant. As indicated, Qazi said he did not deal with the applicant again until approximately 8:00 p.m.

I have no note that Chin-Sang ever said in his evidence in-chief exactly how he came into possession of the citizenship card. However, towards the end of his cross-examination, Chin-Sang was asked about what happened when the applicant came back with the documents. He said the applicant was buzzed in and came down the elevator where Chin-Sang said he greeted him. It seems to be at this point that some documents, which included the citizenship card, were turned over to Chin-Sang. As I understand it, the applicant waited in the reception area while Chin-Sang took the citizenship card and the other two documents into the secure area and made his photo comparison between the citizenship card and the passport.

The applicant submits that when he turned over the documents he had been asked to obtain he was effectively waiving his s.8 Charter rights. He contends that his waiver was completely uninformed and should therefore be held to be ineffective. Officer Chin-Sang agreed that he did not tell the applicant that he was under no obligation to obtain documents to assist the investigation. Nor did he advise the applicant of the use the documents might be put to, or that they could constitute evidence of an offence on the part of the applicant. It is implicit in the applicant’s submission that if there was an invalid waiver, the officers were engaged in a warrantless search which has not been demonstrated to be lawful by the Crown and which should therefore be held to be unreasonable.

It is Crown counsel’s position that the officers were not engaged in a search having regard to the overall context in which these events were occurring.

I also observe that there is not a strong connection between what occurred and any reasonable expectation of privacy on the part of the applicant. The issue which presents itself as more significant, in my view, is a consideration of the potential impact for what occurred on the overarching principle against self-incrimination. However, the applicant does not raise such considerations directly. Crown counsel did refer briefly to the fact that, despite its overarching nature, context is important in determining whether the principle against self-incrimination, as protected by s. 7 of the Charter, has been violated. See R. v. White, 1999 689 (SCC), [1999] 2 S.C.R. 417, [1999] S.C.J. No. 28, at para. 45; and R. v. Jones (2006), 2006 28086 (ON CA), 81 O.R. (3d) 481 (C.A.).

My comment about context is not directly linked to the border crossing context, which was the important context in Jones, because the applicant was not himself crossing a border. However, the fact that the accused had already lied to assist getting the young person into Canada, together with my acceptance of the evidence that, at least to this point, the officers were focused on determining the young person’s eligibility for admission to Canada and were not conducting a criminal investigation, are important contextual matters affecting whether what occurred constituted a search or an intrusion on the privilege against self-incrimination.

Officer Chin-Sang testified that after he made his photo comparison, he spoke to the young person and conveyed to him that the photo on the citizenship card for Kogulan Anantharajah was not a photograph of him. At that point the young person gave the officer his real name. The evidence is silent about precisely when this happened, or about how this fits in with the other events on the timeline. I also observe that I have no evidence about when or how or by whom the applicant and his father were arrested.

It would seem that after handing documents over to officer Chin-Sang at about 7:30 p.m., the applicant was permitted to leave the immigration area in order to get coffee or tea for his father. This is a factor which weighs against a finding of detention at the time the applicant came back to secondary at 7:30. However, that was not the last time the applicant came into the secondary area.

Officer Qazi testified that after he left the applicant at 5:30 p.m., he did not deal with him again until the applicant was returning from getting beverages at 8:00 p.m. Officer Qazi said that at that point the applicant had to be searched because he was going to enter the secure area. According to Qazi, this was a standard procedure for officer safety. The search was required to ensure that persons entering the secure area did not have an object which could be used as a weapon. He said the applicant agreed to such a search.

I note that I received no evidence that the applicant was required to undergo a similar search when he had previously entered the secure area. Officer Chin-Sang said that he took the applicant to make a visual ID of the passengers at 5:30 p.m. That must have required the applicant’s entry into the secure area.

I find that both the timing and nature of the search that was actually conducted by Officer Qazi are problematic. As it was after 8:00 p.m., I infer it was after Chin-Sang had compared the photo on the citizenship card to the photo on the passport and concluded that they did not match. The officers were working together. Once that occurred, the officers must have known that an offence or offences had been, or were being committed. Reasonable grounds existed to conclude that the applicant was participating in that criminal activity. That was so whether or not these officers were members of the unit within the CBSA designated to investigate such matters. By any definition, the applicant had become a suspect.

As to the nature of the search, Qazi said it was for officer safety to check for objects that could be used as a weapon. However, the search he conducted went much further than was required to achieve that objective. Qazi used the search to go through the contents of the applicant’s wallet. There he found and seized a high school photo identification card in the name of Kogulan Anantharajah, and a student discount transit card with a photo on it, in the same name. I find that officer Qazi was conducting a search to look for evidence.

Qazi said the applicant agreed to an officer safety search. The accused’s consent, based on Qazi’s evidence, would have been so limited. Consequently, I view this search as going beyond the scope of the consent given by the applicant. Qazi did not purport to have any other basis to conduct the search that resulted in the finding of these additional documents. This impacts the s.8 analysis. All of these factors are also relevant to the question of whether, and if so at what point, the applicant was detained.

When Qazi found the cards in the wallet he asked the applicant whose they were. The applicant said they were his. Qazi said “no”, and told the applicant he must tell the truth because there was a child involved. This demonstrates that Qazi had clearly formed the view that the applicant was lying to him regarding the identity of the young person who was trying to enter Canada. At the very least this is a further indication that the accused was a suspect. I find that Qazi must have realized that the accused was likely involved in criminal misconduct related to the matter under investigation.

Qazi said the accused became quiet and then said he had something to tell Qazi. At that point Qazi said he brought the applicant through into the secure area and told him to have a seat. Qazi then went and told the other officers that he thought the applicant was about to tell him the truth.

The applicant submits that he was certainly detained at this point and that s.10(b) of the Charter was violated because he was not given his rights to counsel. The applicant also challenged the voluntariness of everything that was said during this encounter and subsequently.

Officer Qazi then went back to speak to the applicant. The applicant told him that the young person was not his real brother, but a family friend they were helping to come to Canada. The applicant said the young person had an uncle in Canada, that his mother had submitted the passport application, and that his family was paid $2000 to help the young person enter Canada. Qazi told the other officers what he had learned.

Officer Qazi said that after this disclosure was made everyone became more relaxed. Qazi told the applicant he could either wait inside the secure area with his father, or go to the reception area just outside the secure area, but still within the controlled entry environment. He said a pass card or buzzer was not required to leave from that area and that the applicant could have left if he wanted to. This is also a factor I have taken into account on the issue of detention.

At no time throughout any of the foregoing events was the applicant advised that he was not obligated to go with the officers, that he was not obligated to obtain any documents, that he was not obligated to speak to the officers, or that anything he said or gave to the officers could be used as evidence. He was never cautioned that he was in any jeopardy or given his rights to counsel.

Further Analysis

I have already explained why I conclude that the applicant was not detained when he entered the secondary area at about 5:00 p.m. He volunteered to go with Officer Qazi. He was not a suspect at that point. The officers were not conducting a criminal investigation, but were trying to clear up an identity issue. They had no obligation to caution the applicant or provide him with his rights to counsel. On balance, a consideration of the various factors in the cases I have referred to on the detention issue leads me to this conclusion regarding the first of the applicant’s visits to the secondary area.

Once he was in that area, the applicant lied to the officers by falsely identifying the young person as his brother, Kogulan. This shows that the applicant was actively engaging in efforts to deceive the officers. This characterizes what he did later, in agreeing to obtain further documents, not as a waiver of his s.8 right, but as a component of the actus reus of an offence he was engaged in committing. This leads into the s.8 issue related to production of the citizenship card and other documents to officer Chin-Sang.

There are three aspects to my conclusion regarding the s.8 issue raised by the applicant in relation to his production of those documents.

First, based on all the surrounding circumstances, I conclude that the officers were not engaged in a search at that time. I conclude that was not their purpose in asking the applicant if he would assist by providing further documents. He had already said, when he agreed to go with Qazi, that he was happy to assist the officers in clearing things up.

Second, the applicant’s reasonable expectation of privacy was not significantly impacted by what he was asked to do and what he offered to do. The officers were looking for documents related to the identity of the young person. They were not seeking any information, personal or otherwise, about the applicant. They were not requesting the production of documents in lieu of a search of the applicant or his residence. They had no plans to do that and the request was not presented to the applicant as an alternative to some other invasion of his reasonable expectation of privacy.

Third, as I have already said, by agreeing to obtain additional documents, the applicant was not waiving or consenting to anything. He was taking opportunistic advantage of the request to further the criminal objective his previous dishonest identification of the young person as his brother demonstrated he was engaged in. In short, turning over the citizenship card to the officers was part of the actus reus of an ongoing offence. It was not the result of a Charter violation.

There is an established line of authority to the effect that there is no need to hold a voir dire to determine the voluntariness of statements or conduct which constitutes the actus reus of an offence. Nor is there a need to establish compliance with s.10(b) or s.9 of the Charter in regard to statements or conduct that constitute the actus reus of an offence which occurs after a Charter violation. See R. v. Stapelton, 1982 3331 (ON CA), [1982] O.J. No. 49, 66 C.C.C. (2d) 231 (Ont. C.A.), per Martin J.A. at para. 4; R. v. Hanneson (1989), 1989 7159 (ON CA), 49 C.C.C. (3d) 467 (Ont. C.A.); R. v. Ha, 2010 ONCA 433; and R. v. Rivera, 2011 ONCA 225.

It seems to me that, while not directly applicable, the general principles discussed in these cases must inform whether something which amounts to the actus reus of a crime can at the same time be viewed as a waiver of rights or a consent to a search. I conclude that in the circumstances here the reasoning in these cases applies. Therefore, I conclude that there was no violation of s.8 of the Charter in relation to the applicant’s production of the three documents to Officer Chin-Sang. My findings of fact prelude that.

As previously mentioned, although not raised by the applicant, I have had some concerns about the potential for a s.7 violation in relation to the privilege against self-incrimination arising out of these circumstances. However, relying on the same type of analysis that was undertaken by Doherty J.A. in Jones, but without utilizing the border crossing context and instead relying on the other contextual matters I referred to earlier, I do not think there was a violation of s.7. The officers were not trying to collect incriminating evidence against the applicant when they asked if he could provide further documentation. The applicant was not a target of investigation at that time, despite some generalized suspicion on the part of the officers.

Of even more significance in relation to s.7 concerns is my finding that the applicant was engaged in an ongoing attempt to deceive the officers. The applicant chose to do what he did to further his own goal of assisting his father and the young person. His choice to do that was not the product of any form of compulsion or coercion emanating from a state actor. He had his own reasons for choosing to do what he did, which were related to his ongoing attempt to deceive the authorities.

Turning back to detention issues, I am not persuaded that the applicant was detained when he re-entered the secondary area or the secured area at 7:30 p.m., when he returned with the citizenship card. That was part of his ongoing effort to perpetrate an offence. He entered willingly in order to provide the citizenship card and other documents. He was then permitted to leave to get coffee or tea for his father.

I am also satisfied that everything that was said by the applicant at any time prior to 8:00 p.m. was voluntary. There is no evidence of any threat, promise, oppression or trick. A full contextual analysis of everything that occurred prior to 8:00 p.m. satisfies me beyond a reasonable doubt that the applicant’s utterances were voluntary as that concept is discussed in R. v. Oickle, 2000 SCC 38.

In making that determination I have taken into account that the applicant had not been cautioned or given his rights to counsel. As he was not detained, there was no obligation to give rights to counsel. As I conclude that the applicant was not a suspect until after officer Chin-Sang compared the citizenship card to the passport, there was no need to caution him.

However, I come to quite different conclusions in relation to what happened commencing at about 8:00 p.m., when the applicant re-entered the secondary area for the third time. I have already explained that by that point the applicant was a suspect. While that does not give rise to a rigid requirement that he be cautioned concerning his right to remain silent, it would certainly have been advisable to give him a caution at that time. As indicated as far back as R. v. Boudreau, 1949 26 (SCC), [1949] S.C.R. 262, at p. 267, while a caution is not a prerequisite to a finding of voluntariness, the presence or absence of a caution can be an important factor in relation to that issue.

I have also explained my conclusion that officer Qazi used the pretext of an officer safety search to conduct a more extensive search than the one the applicant consented to. The only basis for the search conducted at that time was the consent. I am satisfied that the consent was not fully informed. By that time the applicant was a suspect. I have concluded that Qazi wanted to search for evidence. He did not tell the applicant about the true nature and extent of the search, and he did not advise him that he had a choice not to consent to such a search.

Moreover, as there had been no caution of any kind given to the applicant he did not have important relevant information about his jeopardy at the time he consented to the search. I would make the additional point, which will become more significant later, that the documents found in this search seem to have been instrumental in the applicant’s decision to speak further with Qazi.

I also note that even though there were grounds to arrest the applicant, there has been no effort to justify this warrantless search as a search incident to an arrest. The evidence is clear that there was no arrest at that time as the applicant was later permitted to wait outside the secure area. I have no evidence as to when or by whom the applicant was arrested. This distinguishes this case from R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140. I conclude the applicant’s s.8 Charter rights were violated by the search conducted by Officer Qazi.

I am also of the view that after Officer Qazi found the two cards in the applicant’s wallet, asked the applicant whose they were, indicated that he did not accept the applicant’s response, and stated that the applicant had better tell the truth, the applicant was detained based on a consideration of all the relevant factors as set out in the cases previously referred to. At that point the applicant was ushered into the secure area for the third time and was told to take a seat. Although the applicant had come back to secondary voluntarily, the circumstances were very different this time when Qazi let him in. By then the applicant was a suspect and I have found Qazi was collecting evidence.

Even if Qazi subjectively viewed what was occurring as focused on identifying the young person, by this point there were serious concerns about the applicant incriminating himself. The authorities were now engaged in collecting evidence from the applicant about past events that could very likely constitute evidence of his criminal involvement. The context had changed considerably. As the applicant was not given his rights to counsel, I conclude that s.10(b) of the Charter was also violated at that point in time.

Turning to the question of voluntariness, I find that I am left in a state of reasonable doubt about the voluntariness of the statements subsequently made by the applicant. The burden of proof is important here. I think the statements probably were voluntary, but that is not the test. The reasonable doubt that I harbour flows from a combination of factors viewed in the totality of the circumstances, but is primarily related to the lack of a caution. My finding of a s.10(b) violation also affects my decision on the voluntariness issue.

In saying this I have in mind the long existing relationship between the right to remain silent and voluntariness, which was carefully reviewed by Charron J. in R. v. Singh, 2007 SCC 48, and the purpose served by s.10(b) of ensuring a detainee has the opportunity to obtain advice in order to allow them to make an informed choice about speaking to the police. I would make particular reference to paras. 31-33 of Singh.

While there is no evidence of any threat or promise, or of oppression or tricks, the applicant is youthful and it had not been bought to his attention in any way that his statements could be used against him as incriminating evidence for a serious offence. There is nothing in the evidence to suggest that the applicant was experienced in criminal matters or knew his rights. There was also Qazi’s final appeal that a child was involved. This was not an improper inducement on its own, but the totality of the circumstances and this appeal together may well have conveyed that the officers were not gathering evidence against the applicant but were focused only on the well-being of the child.

As recognized in Oickle, and particularly in Singh, whether an accused has been made aware of his rights to counsel and given a caution about his rights to remain silent are important relevant factors in determining voluntariness. Here I am of the view that the applicant had little to no basis upon which to judge the jeopardy he was in when he chose to speak to Officer Qazi. He also had no advice at all about his rights. That was a state of affairs that Qazi was responsible for.

While I find the decision on voluntariness to be a close call given the lack of any real interrogation, in combination, these factors leave me in a state of reasonable doubt as to whether the statements were voluntarily made in the relevant sense. The applicant did not have even basic information about his jeopardy or his rights when he chose to speak, and s.10(b) had been violated. If, as indicated in Singh, a violation of s.7 of the Charter leads to a finding of involuntariness, a finding of a s.10(b) violation must be at least an important factor in the full contextual analysis required in determining the voluntariness issue.

I conclude the statements made by the applicant subsequent to 8:00 p.m. are inadmissible.

I turn now to s.24(2) of the Charter in relation to the admissibility of the documents found in the applicant’s wallet and the statements he made to Qazi after 8:00 p.m. I will briefly address each of the three avenues of inquiry relevant to the applicant of s.24(2) of the Charter, as discussed in Grant before balancing the results of those inquiries and stating my conclusions.

First, I must consider the seriousness of the Charter-infringing state conduct. I conclude the Charter violations fall towards the more serious end of the spectrum. There are both s.8 and s.10(b) violations. They occurred at more or less the same time after I conclude Qazi had set out to gather evidence that could incriminate the accused. The search was warrantless and justifiable only on the basis of a flawed consent. There was a degree of deception involved in obtaining that consent.

The failure to provide rights to counsel to the applicant at this point is also particularly serious because all persons in such a position need to have an opportunity to obtain legal advice to protect their rights in relation to self-incrimination. There is a significant long term societal interest in ensuring that this occurs.

When officer Qazi testified he did not seem to have a sound understanding of when rights to counsel are required to be given. In view of his position as a Canada Border Services officer, one would expect him to have received adequate training. I can only infer that he either has not received adequate training or that he negligently or recklessly ignored the training he had received. All of this is concerning, evaluated from the perspective of public confidence in the rule of law and its processes.

There were no extenuating or exigent circumstances here. The officers had established, by means of the citizenship card, that the young person was not Kogulan Anantharajah. By the time the Charter violations occurred they were gathering evidence. There is no suggestion here that the officers made any sort of good faith based error. The court must distance itself from what occurred in this case.

Second, I must consider the impact of the violations on the Charter-protected interests of the applicant. In the circumstances here, I find the breaches extensively undermined the interests protected by ss. 8 and 10(b) of the Charter.

Based on my findings of fact, there was no basis for searching the applicant’s wallet and the applicant was essentially tricked into consenting to the search. That search led to finding documents which Qazi then used to convince the applicant to make a statement. Therefore, the unreasonable search is implicated in the applicant’s subsequent self-incrimination.

The s. 10(b) violation deprived the accused of the opportunity to obtain legal advice before he incriminated himself. The s.10(b) violation must also be viewed in the light of the fact that there was a complete absence of any other form of caution given to the applicant. He ended up choosing to provide highly incriminating evidence to the police without having been advised of his right to remain silent, or of the consequences of speaking. He was not advised of the jeopardy he was in.

In short, the main purposes served by s.10(b) were completely undermined, and the impact on the applicant is very detrimental to his interests. He made highly incriminating statements in relation to serious charges without receiving any advice about his rights, and the state now wishes to use that evidence against him.

Third, I must consider society’s interest in an adjudication of this case on its merits. I observe that the evidence sought to be excluded appears to be reliable evidence. Society has an interest in the admission of reliable evidence. However, I also note that the exclusion of the evidence in question will not prevent the prosecution from proceeding. There is a considerable body of other evidence available. The exclusion of the evidence in question will not gut the prosecution’s case.

I have not overlooked the seriousness of the charges. However, as stated in Grant, this cuts both ways. These charges fall somewhere in the middle of the seriousness range judged from society’s perspective. They could have very serious consequences for the applicant.

Turning to the balancing of these three lines of inquiry, I find that the first two favour exclusion of the evidence, while the third favours admission. However, the weight of the third line of inquiry is reduced slightly by the fact that there is other evidence on which the prosecution may proceed.

Having regard to the long-term repute of the administration of justice I conclude the balance tips in favour of the exclusion of the evidence that I have found was obtained in the wake of the Charter violations.

Summary of Conclusions

All of the challenged evidence that was obtained prior to the applicant re-entering the secondary area at approximately 8:00 p.m., is admissible for the reasons stated above.

All of the challenged evidence that was obtained subsequent to the applicant re-entering the secondary area at approximately 8:00 p.m. is inadmissible for the reasons stated above.

FORM 2

CERTIFICATE OF TRANSCRIPT

Evidence Act, Subsection 5(2)

I, Ryan Easson, certify that this document is a true and accurate transcription of the recording of, October 2, 2015, in, R. v. Asipillai and Anantharajah in the Superior Court of Justice, held at 7755 Hurontario Street, Brampton, Ontario, taken from the Recording(s) 3199_205_20151002_091811__30_DAWSONF.dcr

which has been certified in Form 1.

(Date) (Ryan Easson)

Court File No. 14-603

CITATION: R. v. Asipillai, 2015 ONSC 6881

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

ANANTHARAJAH ASIPILLAI

AND

SENTHURAN ANANTHARAJAH

R U L I N G

BEFORE THE HONOURABLE JUSTICE DAWSON

on October 2, 2015, at BRAMPTON, Ontario

APPEARANCES:

A. Chamberlain Counsel for the Crown

B. Grys Counsel for Anantharajah Asipillai

A. Datt Counsel for Senthuran Anantharajah

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

RULING PAGE 1.

Transcript Ordered: October 2, 2015

Transcript Completed: November 15, 2015

Ordering Party Notified: November 16, 2015