Her Majesty the Queen v. Jordan Ivery David, 2015 ONSC 6940

COURT FILE NO.: CR-15-10000315-0000

DATE: 20151110

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JORDAN IVERY DAVID

Defendant

David Mitchell, for the Crown

Adele Monaco, for the Defendant

HEARD: June 8, 9, 10, 11, 12, 15, 17, 2015

RULINGS ON THE ADMISSIBILITY OF POST-ARREST STATEMENTS

b. p. o’marra, j.

OVERVIEW

1In the early hours of August 6, 2012, shots were fired in downtown Toronto. Two civilians were struck by bullets. Members of the Toronto Police Service (TPS) were on routine patrol in the area at the time. The suspected gunman was pursued on foot by the police and arrested a short distance away near Osgoode Hall. The suspect was Jordan David. He was transported in custody to a nearby police station. He now faces a series of firearm related charges.

2The crown has tendered utterances made by Jordan David to various members of the TPS, including an interview recorded on video that lasts over 80 minutes.

3The defence contested the admissibility of all post-arrest utterances based on issues related to voluntariness and s. 10(b) of the Charter. The parties agreed at the outset of the pretrial motions to proceed on a blended voir dire. Evidence and submissions proceeded over six days. On June 17, 2015, I ruled that all post-arrest utterances made by Jordan David are not admissible at his trial. These are my reasons.

THE EVIDENCE

Pursuit and Arrest of Jordan David

4At approximately 5:15 a.m., members of the TPS on Richmond Street in downtown Toronto heard shots fired. Almost immediately thereafter officers were chasing a suspect on foot west on Richmond Street, north on University Avenue and east on Queen Street. The suspect was a male black wearing a hoodie. As he ran west, the suspect appeared to toss something to the side.

5Sgt. Ragell caught up to the suspect as he proceeded north on a walkway east of Osgoode Hall. The suspect looked very tired and was walking slowly. He was not wearing a hoodie. Sgt. Ragell approached him with his gun drawn and ordered him to get onto the ground. Before he caught up to the suspect, Sgt. Ragell heard on his police radio that shots had been fired, someone had been hit and a gun had been recovered. The suspect was gasping for air and did not resist. The suspect was cuffed to the rear. A cursory pat search for weapons or contraband was negative.

6Det. Cst. Stanley Abraham was one of the officers who arrived on foot after Sgt. Ragell had apprehended the suspect. He described the suspect as sweating profusely and panting. He heard the suspect deny that he had done anything. Det. Cst. Abraham asked the suspect where the hoodie was and received no response. The suspect identified himself as Jordan David, born October 25, 1993. Det. Cst. Abraham did not observe any injuries to Jordan David and none were complained of.

7The police escorted Jordan David on foot to a cruiser parked near the scene of the original shooting. As they walked on the east side of Osgoode Hall, Det. Cst. Abraham noticed a black hoodie in a bush. That item was later recovered by police.

8When they were at the parked cruiser, Det. Cst. Abraham heard Sgt. Ragell read the rights to counsel from his notebook to Jordan David. He could not recall what the specific charges were.

9Sgt. Ragell testified that he read the rights to counsel from his memo book at approximately 5:19 a.m. He also told Jordan David that he was under arrest for attempt murder, as well as certain firearm offences. Jordan David seemed quite out of breath. Sgt. Ragell asked Jordan David whether he wished to contact a lawyer now. Jordan David replied that he understood and that he wanted to speak to his mom. A more thorough search of Jordan David was conducted before he was placed in the rear seat of the cruiser. He remained cuffed to the rear.

10Sgt. Ragell’s decision to arrest Jordan David for attempt murder at the outset was based on the brief information he had received; specifically, someone had been shot and was still alive. Further or other charges could be laid later by the officer in charge (Det. Cst. Paul Rinkoff).

11Sgt. Ragell repeated the rights to counsel and charges to Jordan David in the cruiser. Jordan David again said he understood and that he wanted to call his mom. Sgt. Ragell was satisfied that Jordan David understood his rights to counsel. The officer did not smell alcohol from Jordan David and did not observe any signs of impairment. He described Jordan David as looking very scared, “more a scared boy than a man”. Jordan David provided contact information for his mother.

12Several minutes passed as Jordan David sat in the rear of the cruiser before he was transported to 52 Division. Det. Cst. Abraham observed that the back windows of the cruiser appeared heavily fogged up. Jordan David was still sweating and panting. He said he did not feel well. Sgt. Ragell observed that Jordan David vomited in the cruiser 10-15 minutes after being placed inside. Sgt. Ragell opened the door and asked how he was doing. Jordan David leaned out of the cruiser and continued to pant and vomit. Sgt. Ragell recalls that he actually helped Jordan David to step out of the cruiser to vomit before he was placed back into the cruiser. Sgt. Ragell testified that he did not detect the odor of alcohol from the vomit.

13There was an EMS team nearby as this unfolded. The police asked them to speak to Jordan David about his condition. A senior officer on scene suggested to Sgt. Ragell that Jordan David’s hands be bagged to preserve potential evidence of gunshot residue (GSR). One of the medics taped a bag around each of Jordan David’s hands.

Transport to 52 Division

14Cst. Juan Del Gado transported Jordan David to 52 Division in his cruiser. Jordan David was placed in the cruiser at 5:20 a.m. The “in car video” for the cruiser recorded the time from 5:24 a.m. until 6:13 a.m. when they arrived at 52 Division. The cruiser did not leave the scene until 6:03 a.m. The following evidence was captured on the video:

5:24 a.m. – Sgt. Ragell advises Jordan David of his right to counsel. Jordan David says he understands. Jordan David is squirming and asks that a window be opened. He wants to call his mom. He asks again that the window be opened. The request is declined.

5:29 a.m. – Jordan David looks very uncomfortable and is squirming.

5:24 a.m. – Jordan David looks unwell.

5:41 a.m. – The cruiser is still at the scene. Jordan David says he has to vomit and does so in the cruiser.

5:42 a.m. – The rear door of cruiser is open. Jordan David lays on the seat and has his head outside while he vomits.

5:44 a.m. – Sgt. Ragell advises that EMS is nearby and will help.

5:47 a.m. – Jordan David yells in pain as he is pulled by the arm out of the cruiser. He says it would be easier to be taken out the other side.

5:48 a.m. – Jordan David is outside the cruiser and out of sight.

6:01 a.m. – It looks like someone is cleaning up the vomit in the cruiser. It sounds like Jordan David is vomiting again outside the cruiser as this happens.

6:02 a.m. – Jordan David was placed back into the cruiser and lies down across the seat.

6:05 a.m. – The cruiser finally is mobile en route to 52 Division. Jordan David appears to be sleeping in the back seat. Officer Del Gado recalled that EMS told him that Jordan David was clear for transport to the station.

6:11 a.m. – Jordan David is still sleeping and snoring while lying across the back seat.

6:13 a.m. – Sgt. Ragell announces they have arrived at the station. Jordan David is helped out of the cruiser and asked how he feels. He responds he is not feeling better. Sgt. Ragell replies “just wait until you get your wind back.”

Booking at 52 Division and Lodging Before Video Statement

15The crown filed the video record of the booking procedure for Jordan David after he was brought to 52 Division. At 6:12 a.m., Sgt. Ragell is with him before the sergeant on duty. Sgt. Ragell recited the age and address for Jordan David and referred to the charges as “attempt murder and firearm offences”. Sgt. Ragell confirmed that Jordan David had been advised of his right to counsel. Sgt. Ragell also requested permission to conduct a level 3 search of Jordan David before he was lodged in a cell. He also pointed out that Jordan David’s hands had been bagged for gunshot residue testing. On the video, Jordan David can be heard to softly indicate that he was going to be sick.

16Jordan David indicated that he wanted to speak to his mother and that he also wanted to speak to duty counsel. The sergeant asked whether he had “a fair bit to drink” that night. Jordan David responded “not a lot, a little, perhaps 3 or 4 drinks”. Jordan David asked Sgt. Ragell if he could sit on the bench. Sgt. Ragell responded “not now”. Jordan David asked again if he could sit. In response, Sgt. Ragell said “no, you are just 18, you just ran a mile”. Sgt. Ragell also told him to pay attention.

17Jordan David was then escorted away from the desk area for the level 3 search. At 6:28 a.m., he appears again on video before the sergeant after the completion of the level 3 search. The sergeant advised Jordan David that he would be taken upstairs and would have the use of a phone.

18At 6:30 a.m., Jordan David was lodged into an interview room.

19Officer Michael Marchan was a scenes of crime officer who had been with the Toronto Police Service for some 33 years. At 6:45 a.m., he had been contacted to attend at 52 Division in regard to three persons in custody who were possibly involved in a shooting incident. At 8:17 a.m., he arrived at the station and met with Det. Cst. Rinkoff. At 8:47 a.m., Officer Marchan first met Jordan David in the interview room in the presence of Det. Cst. Rinkoff. Jordan David was asked if he wanted to speak to counsel. Jordan David replied that he wanted to speak to his mother. Jordan David was told that he would still have a chance to contact counsel. At this stage Officer Marchan explained the process for conducting the gunshot residue test. At 9:00 a.m., the bags were removed from Jordan David’s hands and the cuffs were taken off. Officer Marchan then conducted the gunshot residue process.

20In cross-examination, Officer Marchan agreed that his notes indicated that the two other suspects in this matter had been permitted to speak to duty counsel before the gunshot residue tests had been conducted on those persons.

21At 9:13 a.m., Sgt. Ragell tried to contact Jordan David’s mother. He was unsuccessful. Jordan David was upset and in tears and begged the officer to try and call his mother again. Sgt. Ragell tried a second time to contact his mother without success.

22At 9:20 a.m., Sgt. Ragell placed the first call to duty counsel and left information on an answering service. At 9:25 a.m., duty counsel returned the call. Jordan David was allowed at that time to speak with duty counsel in private. He was told to knock on the door when the conversation was finished. This was the first contact permitted between Jordan David and duty counsel in this matter.

23Officer Adam Penner was on duty from 6:00 a.m. on August 6, 2012. At 12:40 p.m., he entered the interview room where Jordan David had been lodged. Officer Penner asked him if he wanted food. He replied he did not but would like some water. Officer Penner complied with that request. Officer Penner indicated in cross-examination that he had no idea whether any breakfast had been offered to Jordan David since his time at the station from the early hours of that morning.

The Video Interview

24Det. Cst. Paul Rinkoff was the lead investigator on this case. His involvement began at 5:15 a.m. on the morning of August 6, 2012. At 2:30 p.m. that day, he began an extensive video interview with Mr. David in the presence of Officer Kirby Reddin. The interview ended at 3:51 p.m. That would be about 10.5 hours after Mr. David had been arrested.

25At 8:20 a.m., Det. Cst. Rinkoff spoke to Officer Michael Marchan in regard to GSR tests to be conducted in regard to three suspects. Each of the suspects, including Mr. David, were being detained in separate interview rooms. At approximately 8:57 a.m., Det. Cst. Rinkoff entered the room where Jordan David was detained. He told him that a forensic officer would be coming in shortly for the conduct of certain tests. He asked him if he wished to speak to a lawyer or legal aid. Jordan David replied no, but he wanted to speak to his mother. Det. Cst. Rinkoff described Mr. David as being well-spoken and giving no indication that he was impaired or under the influence of alcohol.

26At 9:00 a.m., Det. Cst. Rinkoff left the room as Officer Marchan entered for the conduct of the gunshot residue test.

27Shortly before 2:30 p.m., Officer Rinkoff was preparing to interview Jordan David on video. He did not know whether or not he had previously spoken to duty counsel but had decided he would deal with that issue on video. He did not recall whether Officer Marchan had told him whether any of the three suspects who had been the subject of GSR tests had spoken to counsel or duty counsel before or after their dealings with Officer Marchan.

28Both Officers Rinkoff and Reddin at various times asked questions and made statements to Mr. David and sought his responses. The video clearly shows Officer Rinkoff and Jordan David. Unfortunately, the voice of Officer Reddin is heard prominently but the only portion of his body that is actually seen throughout the video are his hands making gestures as he spoke to and at Jordan David.

EXCERPTS FROM THE VIDEO INTERVIEW

29The following are portions of the video interview that are relevant to both the voluntariness and Charter issues in regard to the admissibility of the post-arrest utterances of Mr. David. I have underlined those portions of particular significance:

RINKOFF: Okay I’m going to start off just by saying you’re under arrest, you know you’re under arrest for firearm related offences okay that’s what you’re being investigated for okay. I know you’ve had the opportunity to speak to a lawyer, legal aid, and you have done so is that correct?

DAVID: Yes.

RINKOFF: Who did you speak to?

DAVID: The duty counsel.

RINKOFF: Duty counsel and I assumed you got legal advice?

DAVID: Yeah.

RINKOFF: And you understood the legal advice, you understood what they were telling you?

DAVID: Sort of.

RINKOFF: Okay, well I’m going to read you your rights again okay just to make sure that you understand what your rights are okay. Okay, it’s my duty to inform you you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You may – you ah have the right – yeah you also have the right to free advice from a legal aid lawyer if you are charged with an offence you may apply to the Ontario Legal Aid Plan for assistance 1-800-265-0451 is a number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand that?

DAVID: Yeah.

RINKOFF: And do you wish to call a lawyer or legal aid now again?

David: Yeah.

RINKOFF: You want to call them again?

DAVID: But I don’t have a lawyer.

RINKOFF: Okay if you don’t have a lawyer maybe we can put you in touch with duty counsel again ---

DAVID: Uhuh.

RINKOFF: ---and then what we’ll do is we’ll bring you right back or you don’t have to it’s up to you.

DAVID: It’s the same – they’re just going to tell me the same thing so ---

RINKOFF: Yeah.

DAVID: ---I guess not.

RINKOFF: Well you have to give me a yes or a no.

DAVID: Okay.

RINKOFF: It’s just – it’s your right ---

DAVID: Yeah.

RINKOFF: --- just so you understand you can call a lawyer or a legal aid and if you want to exercise that right right now we will be more than happy to take you over to the phone. So do you want to do that now?

DAVID: Yeah.

RINKOFF: Yes?

DAVID: Uhuh.

RINKOFF: Okay, so what we’ll do is I’m just going to stop the video, we’ll take you over to the phone, you’ll make the call and then we’ll come back in here, okay. So the time is 2:32 p.m. so we’re going to put pause video, I’m going to hit stop and we’re going to take you over the phone again for your second call, okay.

PAUSE

RINKOFF: Okay, so have a seat we’re back and ah my partner there he’s just going to get ah – a pad of paper there. Okay the time is 3:07 by my watch. Still is uhm August 6, 2012 it’s 3:07 p.m. now. So since the time you left the room what did you do sir?

DAVID: Left the room ---

RINKOFF: Yeah.

DAVID: ---this room?

RINKOFF: Yeah, what happened? What did you just do?

DAVID: Talk to duty counsel.

RINKOFF: Okay.

DAVID: Then I used the washroom.

RINKOFF: That’s true, you did use the washroom. Did we discuss this case?

DAVID: Yeah.

RINKOFF: No we didn’t – did we just discuss the case just now?

DAVID: The what?

REDDIN: Did you and I or Detective Rinkoff have discussions about this case before you or after you spoke with duty counsel?

DAVID: Oh no.

RINKOFF: Okay, I’ve already read you your rights to counsel so you understand them. You spoke to ah legal aid twice today okay. So we we’re going to do now is an acknowledgment that you understand that this conversation, this interview is being video and audio taped and that you consent to such a tape being made. Do you consent to this interview being video and audio taped?

DAVID: I consent to?

RINKOFF: Yeah.

DAVID: No.

RINKOFF: You don’t consent to it? Any particular reason why?

DAVID: Not really but---

RINKOFF: Pardon me?

DAVID: Not really but no.

RINKOFF: Okay, so the reason why we’re video and audio taping it is so there is a record of it---

DAVID: Uh.

RINKOFF: ---that’s dual purpose for our proceedings and also uhm to record what you say so that you know it’s verified that that’s what you said.

REDDIN: And that way at the end of the day you don’t put words in our mouth and more importantly we’re not putting words in your mouth. You hear what I’m saying. So a video protects us but also protects you as well and that’s – and that’s the purpose of videotaping okay.

RINKOFF: So when we ask you are you consenting it’s not that you’re admitting that you’ve done something wrong, we’re just asking you if it’s okay that we record this interview ---

DAVID: Yeah.

RINKOFF: --as we’re going.

DAVID: Yeah that makes sense.

RINKOFF: So you’re okay with that?

DAVID: Yeah.

RINKOFF: Okay, so this statement uhm can be taken under oath, solemn affirmation or solemn declaration but I just have to advise you of certain things okay. You must understand that it is a criminal offence to obstruct justice or commit public mischief by making a false statement to police during an investigation. You must understand that you may be a witness at a trial concerning the events that you describe in this statement and if at that time you recant your statement or claim it to be false, it can and will be used at a trial, you may be liable for prosecution for fabricating evidence. You must understand that you’re not obliged to give this statement if any person has by words or acts attempted to pursue you to provide this statement you are to disregard those words and acts and only give this statement if you freely truly – if you freely choose to do so okay. You’re (sic) just listen to me right now okay. So I’m just going to ask you the standard questions, do you understand your rights to choose whether or not to make a statement?

DAVID: Yeah.

RINKOFF: You understand that okay. And you understand the criminal consequences of making a false statement? You just have to say yes right not---

DAVID: Yes yes yes.

RINKOFF: ---because we’re recording okay. And we already told you this but you understand that this statement will be taken down in writing so either my partner and I are going to make some notes ---

DAVID: Yeah.

RINKOFF: ---or and it’s going to be audio taped and videotaped.

DAVID: Yes.

RINKOFF: Okay, so what we’d like you to do is uhm we’ll bring a Commissioner of Oath up and you basically swear to tell the truth. Are you okay with that?

DAVID: Yeah.

RINKOFF: Okay so we’re going to call one up right now. It just takes two minutes.

REDDIN: Are you ah are you Christian or do you want to affirm?

DAVID: Yeah I’m Christian.

REDDIN: Yeah, do you want to swear on the Bible or do you want to affirm to tell – to promise to tell the truth make an oath.

DAVID: Promise to tell.

REDDIN: What’s that?

DAVID: I promise to tell.

RINKOFF: Okay.

REDDIN: It means the same thing in the eyes of the law right.

DAVID: Yeah.

REDDIN: Okay.

RINKOFF: I guess you’re off for the summer now or do you go to school?

DAVID: No, I’m off for the summer. You guys don’t have no food?

RINKOFF: Ah did you want ah – you hungry?

DAVID: Yeah I am.

RINKOFF: Okay uhm I do have a sandwich uhm.

DAVID: What kind of sandwich?

RINKOFF: It’s cheese, it’s kind of standard it’s what we give people here. Uhm, we can give it to you now if you want or we can give it to you after.

DAVID: Can you give it to me after.

RINKOFF: What’s that?

DAVID: I was wondering if you could get it to me after.

RINKOFF: After is that okay, alright. Jordan just asked for a sandwich I told him we could give him one now or after and he says after is fine.

REDDIN: Okay.

COMMISSIONER OF OATH: My name is Jane Ziomek badge number 86842 I’m a Commissioner of Oaths for the Toronto Police Service and you are Jordan David.

DAVID: Yeah.

COMMISIONER OF OATH: Jordan, did you want to swear on a Bible or did you want to do an affirmation?

DAVID: I’d rather not swear on the Bible.

COMMISSIONER OF OATH: You want to swear on the Bible.

DAVID: No I said I’d rather not swear on a Bible.

COMMISSIONER OF OATH: You’d rather not swear okay we’ll do an affirmation then. Ah do you Jordan David solemnly affirm that the evidence you shall give in this investigation is the whole truth and nothing but the truth?

DAVID: Yes.

RINKOFF: Thank you. Okay Jordan so what I’m going to ask of you uhm just listen to me for a second uhm you were arrested this morning I believe at 5:16 a.m. okay officers say you were involved in a chase, officers chased you uhm we’ve been investigating this all day okay and ah we have a pretty firm idea of what happened we’ve interviewed a number of witnesses, collected that’s just some of the video we’ve collected so far okay and this is your opportunity to give us your side of the story about what happened today uhm there is – there are other persons arrested as you know and they did use the opportunity to provide us with information. So I want to give you the same opportunity. So I generally start out the same way I’ll ask you what happened today and I’d like I’d like you to, I’d like you to tell us, I’d like you to do the right thing.

DAVID: Duty counsel told me I can’t speak about it, I can’t speak about it.

REDDIN: Well duty counsel said you can’t speak about it but you have to decide what’s best for you right. If there’s an ex – if there’s an explanation for your actions – we know you did it Jordan okay I’ll tell you that right off the bat okay officers seen you with the gun, they chased you, they caught you it’s you okay there’s no doubt about that, the only question is ah is the circumstances surrounding the incident and that’s what we’re interested in okay. You know what if we want to jam you with gun charges we could do that now, we could just put you back in the cell we’ve got you buddy okay but what we’d like to do is find out – you know what it sounds like your boy Ricky was in a bit of trouble right and maybe you were helping him I don’t know, that’s what we’re trying to figure out here.

RINKOFF: Bubs, you know what I’m saying. He told us all about it.

DAVID: I need a lawyer guys.

RINKOFF: But you already spoke to legal aid.

DAVID: I know.

REDDIN: Okay well we you know what you’ve spoke to legal aid twice we’re done with that okay.

RINKOFF: Do you know what happened as a result of what you did today?

DAVID: I’m here right now.

RINKOFF: Yeah but do you know what happened, do you know where those bullets went?

DAVID: No.

RINKOFF: Do you want to know?

DAVID: Not really.

RINKOFF: What do you think your mom’s going to think when she finds out or she probably knows, she probably watched the news today, because I’m telling you you didn’t miss.

REDDIN: Well that’s not true you actually hit an innocent person. I don’t think that was your intent was it? Once again Jordan you might have had a really good explanation here maybe you were trying to do the right thing and something went wrong. Okay you shouldn’t have had the gun granted but sometimes shit happens okay and you know what you try and do the right thing you used the one thing you’ve got available to you and you try and do the right thing. Is that what happened here today?

DAVID: Say that again?

REDDIN: I said sometimes shit happens like a friend of yours maybe getting into a fight and ah you’re trying to protect him, you’re trying to help, you think he’s in danger and you’re running to his rescue, is that what happened here today?

DAVID: I guess you could say that.

RINKOFF: Like we know about the – we know about the ripped chain, we know about across the street, you know look.

REDDIN: Once again Jordan, if we were trying to – we don’t need you to admit to owning the gun, we know you had the gun okay that’s – forget that okay that’s neither here nor there. What we’re trying to understand here is that something happened right before the shots started okay that’s what we’re trying to understand. We’re not trying – you know like I said we’ve got you on the gun okay, we’re not talking about that. I want to know, what Paul and I want to know is what happened before the shots were fired, that’s what we’re concerned about. And you know what, maybe in your head you had a good reason for doing what you did, but right now you look like a guy that shot a homeless man on the street and someone else. If that’s how you want – want this to go down we can stop the tape right now and you can go down like that, but I don’t think that’s how it went down. I think although misguided, I think that you were trying to do the right thing here, but we need – we need, we need something here from you buddy, something right.

DAVID: Uhuh, I see bro, defending my boy bro.

REDDIN: You were defending your boy yeah. What was happening with your boy, what was happening to him?

DAVID: I just seen altercation.

REDDIN: Once again, we’re not trying to jam you with the gun okay that’s done, we’re past that, we’ve got you on that okay what we want to know is why okay and that’s it. That’s not going to incriminate you more, we just – we want to fully understand this story.

RINKOFF: See the problem is right now, it looks like you mean and shot a homeless guy right and I don’t think you wanted to but I can’t read your mind right so you kind of have to help yourself out but I’m sure you don’t want people to think you did that.

REDDIN: Like I said shit happens man.

DAVID: It’s not trying to say the wrong thing bro because I know this is all going to come back to me see what I’m saying.

REDDIN: Like maybe you got an explanation but we’re not mind readers okay. You know despite – despite what you might think Paul and I have no – have no psychic abilities whatsoever, we need to hear it from you, if there’s an explanation here.

RINKOFF: I know the guy got out of his car, he comes over it’s all on video. We need to know what you were feeling and we need to know ---

DAVID: I was scared bro.

RINKOFF: Okay okay then if you weren’t – if you had no intention of hurting a homeless person then how did this happen? How did a bullet end up in this homeless person? This is your opportunity to clear this up.

DAVID: Careless thinking I guess, I don’t know, I wasn’t thinking.

RINKOFF: Okay.

REDDIN: Where was the gun when you took it out, where did you have it?

DAVID: Ah this is too much guys.

REDDIN: Well buddy it’s reality okay we’re here ---

DAVID: I can’t do this –

REDDIN: ---it’s reality it happened.

DAVID: I can’t do this.

REDDIN: You can do this okay you’re a big enough man to strap yourself with a gun and go downtown and fire off a bunch of rounds ---

DAVID: I can’t do this.

REDDIN: ---you’re a big enough man to tell us what happened.

DAVID: Can you just take me to jail now bro.

REDDIN: No.

REDDIN: You’re an eighteen year old kid okay, you know it’s a serious incident but you know maybe if you sit there and do the right thing you’ll feel better and will be able to get on with your life a bit better. You’re going back to school; you’re going to graduate hopefully. You know like people do crazy stuff when they are young. I could fill a book with crazy stuff I did when I was young okay. A lot of it had to do with protecting my friends it’s okay that’s normal, that’s a normal thing to do.

RINKOFF: Uhuh.

REDDIN: Especially if you’re concerned for their safety. But if you sit there with your hands over your face and don’t tell us that and what happened then we’re going to assume that you targeted both these guys and we’ll put you before the courts that’s fine you know if we didn’t give a shit that’s what we’d do.

RINKOFF: I don’t want – I don’t think you want people to think of you like this.

REDDIN: Do you want your mom to sit up in court and hear that you were – you know you targ – you know you were you were firing blindly into a crowd for no reason, like it just doesn’t – that’s not who you are, you’re better than that.

RINKOFF: At least explain why this homeless guy got shot, like just explain that out you know like explain what you were thinking that caused this guy – the homeless guy to get shot, like what were you thinking? Like were you more concerned for your safety or your friend’s safety?

DAVID: Concerned about both our safety.

REDDIN: I know we’ve been talking a lot at you here Jordan but ah is there anything that you want to say about this?

DAVID: You guys are going to use this in court people in court going to see this?

REDDIN: Yeah, we’re going to use this in court absolutely so this is and we’re giving you an opportunity here right now to ah you know like I’ve said, we’ve been talking a lot at you and ah you know asking questions but is there anything that you want to say right now?

DAVID: No.

REDDIN: No.

Evidence of Jordan David

30At a young age, Jordan David was diagnosed with a learning disability and was developmentally delayed. This caused difficulty in processing and understanding information. He had speech and short-term memory issues. In grade 7 he had been assessed and assigned to special education classes at an alternative school. Formal education was difficult for him. He was 18 years old when he was arrested.

31In the early hours of August 6, 2012, he had not eaten since the previous morning. He had consumed alcohol the prior evening. He was exhausted and sick when he was placed into the cruiser. It was very hot inside. His request that a window be opened was declined by police. He vomited inside the cruiser. The handcuffs to his rear were very tight. He screamed in pain as he was pulled out of the cruiser before vomiting again.

32Jordan David recalls that the police told him that he could only have one phone call. On more than one occasion, he said he wanted to contact his mother.

33He eventually was allowed to speak to duty counsel after the gunshot residue tests were completed. The conversation with counsel lasted 1 or 2 minutes. He received a lot of information but did not really understand what he was told. He had never been arrested or questioned by police before this incident.

34In the course of the video interview, he was permitted to speak to duty counsel again. Counsel told him not to speak to the police but he did not know why. He was never told by the police that he did not have to talk to them, or that what he said could be used in court against him. The caution he received from police confused him as to whether it related to him as a witness or as an accused.

35He felt intimidated and threatened by the police comments about jamming him with more gun charges. He interpreted their words as meaning that if he did not cooperate they would say he had targeted and shot a homeless man and that more gun charges would be laid. He continued to discuss the events as a result of these threats.

36When he told the officers that he needed a lawyer, he was told they “were done with that”. That confused him since they had earlier told him he could have further contact with counsel if requested.

ANALYSIS

37On June 17, 2015, I ruled that all of the post-arrest statements made by Mr. Jordan David were inadmissible at trial. The exclusion of this evidence is based on common law voluntariness rules and breaches of the Charter.

Charter Issues

38The crown properly conceded that there was a breach of s. 10(b) based on the delay in facilitating Jordan David’s access to counsel. The crown submits, however, that this should not lead to exclusion of the evidence pursuant to s. 24(2).

39Jordan David first asserted a desire to speak to duty counsel shortly after 6:12 a.m. This was recorded on the booking video. The first call by police to duty counsel was at 9:20 a.m. Jordan David did not have the chance to speak to duty counsel until 9:25 a.m.

40Sgt. Ragell testified that Jordan David could not be allowed to speak to duty counsel until after the gunshot residue tests had been conducted. However, Officer Marchan testified that the other two suspects were allowed to speak to duty counsel before gunshot residue tests were administered on them. Jordan David remained handcuffed to the rear with bags on his hands for over three hours before his stated wish to speak to duty counsel was accommodated.

41Where there has been a Charter breach, the impact of the admission on public confidence in the administration of justice must be assessed with regard to the factors set out in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32. There was no valid reason for the extended delay in facilitating access to counsel. The breach of Jordan David’s s. 10(b) rights was serious. The impact on his Charter protected interests was significant. The evidence obtained following the Charter breach was conscripted. The reliability of the evidence obtained was dubious bearing in mind issues related to voluntariness and lack of comprehension by Jordan David. The charges are very serious. There is a significant societal interest in an adjudication on the merits. However, a balance of the three Grant factors militates significantly in favour of exclusion of the evidence.

42The post-arrest statements of Jordan David are excluded pursuant to s. 24(2) of the Charter.

Voluntariness

43A confession is inadmissible if made under circumstances that cause a reasonable doubt about voluntariness. The court should consider all the circumstances, including but not limited to threats or promises. The confessions rule is concerned with voluntariness, broadly understood. See R. v. Oickle, 2000 SCC 38.

44Inducements are only improper when, alone or with other factors, there is a reasonable doubt about voluntariness. An important factor is a quid pro quo offer by investigators, regardless of whether it is a threat or promise. See Oickle, at para. 57.

45The right to counsel and the voluntariness rule are related, but not co-extensive. Proof that a suspect exercised the right to counsel is not a proxy for proof of voluntariness. The fact that a suspect was able to consult with counsel is simply one circumstance to be taken into account, albeit an important one. See R. v. Holmes, (2002) 2002 45114 (ON CA), 7 C.R. (6th) 287 (Ont. C.A.) at para. 20.

46Where an accused is detained, whether or not formally arrested and charged, the presence or absence of a caution is a factor, and in many cases an important factor, in answering the ultimate question of voluntariness. See R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 at paras. 31 and 33.

47Jordan David was 18 years old at the time of his arrest. He has a learning disability and is developmentally delayed. He has trouble processing and understanding information. Formal education was very challenging for him. Evidence from the arresting and transporting police officers clearly shows he was sick to the point of vomiting in the first hour. His hands were bagged and he was cuffed to the rear for over three hours. The video interview at 52 Division lasted approximately 1.3 hours. It was completed approximately 10.5 hours after his arrest.

48At the time of his arrest and at the booking process, Jordan David was told he was under arrest for attempt murder and firearm related offences. At the outset of the video statement he was told that he was under arrest for firearm related offences. There was no mention at that time of attempted murder. The interview proceeded with police accusations that Jordan David had shot a homeless man. They sought by various means to have Jordan David explain why he did it. The legal jeopardy faced by Jordan David was unclear from the outset of the interview.

49Jordan David was advised at various times of his right to counsel. However, facilitation of a request to speak to counsel was extensively delayed for unacceptable reasons. In the course of the video interview he was given the KGB warning that is usually reserved for potential witnesses. See R. v. B (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740. The words and circumstances of that warning would have been baffling to someone more sophisticated than Jordan David.

50Jordan David was never advised of his right to remain silent by the police. The presence or absence of a caution is not determinative. However, it is a significant factor in this case. At various points in the video statement, Jordan David seems to be very unclear as to whether his statement could be used against him in court. At one point, in response to a question, Jordan David indicated he did not consent to be on video. The officer then explained that by consenting to be on video he was “not admitting that he had done something wrong”. At another point, Officer Reddin told him that the police knew he had fired the gun and only wanted to know why. Officer Reddin went on immediately thereafter to say “that’s not going to incriminate you more…”.

51At one point in the video, the officer sought an explanation of the events in question. Jordan David was told that the police knew he “did it, no doubt”. The officer went on to say “if we want to jam you with gun charges we could do that now – just put you back in the cell…we’ve got you buddy”. Jordan David responded “I need a lawyer guys”. The police responded that he had already spoken to legal aid twice and continued… “we’re done with that”.

52At the very end of the video, Jordan David asks the officers whether the video will be used in court. He clearly appears to not understand its potential use against him.

53I find as a fact that the admissions made by Jordan David on the video were directly related to the following:

1. the threat “to jam him” with more gun charges;

2. the inducement to help himself by explaining why he shot a homeless man. In the absence of some explanation he would face more serious consequences.

54I am far from satisfied that the crown has proven that the post-arrest statements provided by Jordan David were voluntary as defined in law. The combination of the threats, inducements and personal circumstances of Jordan David at the time of his arrest, detention and interrogation render all of the post-arrest statements inadmissible at common law.

B. P. O’Marra, J.