R. v. Patterson, 2015 ONSC 861
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
OMAR PATTERSON
Aaron Del Rizzo, for the Crown
Theodore Sarantis, for the Accused
HEARD: January 19, 20, 21 and 22, 2015
B. P. O’Marra, J
RULING ON ADMISSIBILITY OF post arrest UTTERANCES
1In the late evening of January 6, 2013 Omar Patterson was arrested in York Region related to an armed robbery that had occurred earlier that night in Toronto. He remained in the custody of York Regional Police for almost two hours before he was transferred to members of the Toronto Police Service. The Crown seeks to tender evidence at trial of utterances allegedly made by Omar Patterson while he was detained in a police cruiser.
2On January 7, 2013 at approximately 1:00 p.m. Omar Patterson was interviewed on video for approximately 45 minutes by detectives with the Toronto Police Service. The Crown also sought to tender this interview at trial. Counsel filed materials and made submissions on a blended voir dire as to voluntariness (Crown onus) and s. 10(b) of the Charter (defence onus).
3In the course of submissions counsel for the Crown abandoned his application to tender the video statement. This was an appropriate position based on a rather glaring violation of s. 10(b) in the early part of the video interview.
ALLEGED UTTERANCES TO YORK REGIONAL POLICE
4It is necessary to review events before and after the alleged utterances for purposes of analysis under s. 24(2) of the Charter.
5At approximately 10:50 p.m. on January 6, 2013 Omar Patterson was arrested at gunpoint by several members of York Regional Police as he drove away from a residence. York Police were acting on information from Toronto Police in regard to an armed robbery earlier that evening. Mr. Patterson was one of two suspects being sought. Patterson was ordered to get out of the car and was handcuffed without a struggle.
6Officer Bryan Lidstone was among the plainclothes officers involved in the takedown. He and Officer Trevor Burke placed Mr. Patterson in an unmarked police cruiser. Officer Lidstone advised Patterson that he was under arrest for robbery and asked if he understood. Patterson said he did. Lidstone did not advise Patterson of his right to counsel. The police did not know whether the second suspect was still in the house that Patterson had driven away from.
7Officers Lidstone and Burke searched Mr. Patterson. They describe him as calm and cooperative throughout. Lidstone asked Patterson if anyone else was left in the house. Patterson replied that his brother (the second suspect) and grandfather were there. The Crown does not seek to tender that utterance.
8Officer Burke continued the arrest made by Officer Lidstone. Patterson was placed in the rear seat of his cruiser. At 11:05 p.m. Burke read the right to counsel and caution from his notebook to Patterson. When asked if he understood Patterson said yes. Burke then asked him if he wished to speak to a lawyer. Patterson said he did not have one. Burke then advised him of the availability of Duty Counsel.
9Officer Burke testified that at approximately 11:40 p.m. Patterson made certain comments that were not prompted by questions from him. The information provided by Patterson was as follows:
He had been out with his girlfriend and child earlier in the day.
He was with them the whole day and dropped them off at 2750 Jane Street, # 506 between 5:30 and 6:30 p.m. and then came home. In cross examination Burke said he may have asked Patterson for the address.
10Officer Burke also testified that at 12:15 a.m. on January 7, 2013 a male party was seen walking near his cruiser. Mr. Patterson identified the male as his next door neighbor.
11While Officer Burke and Patterson were still in the cruiser at 12:25 a.m. Mr. Patterson’s cell phone rang. Mr. Patterson told Burke that the caller was the neighbor who had walked by earlier, whose name was “Shama”. The cell phone must have been in the front seat with Officer Burke when it rang. He agreed he may have asked Patterson who was calling.
12In cross examination Officer Burke agreed that as of 11:45 p.m. he knew that Toronto Police Service were coming to pick up Mr. Patterson and that they planned to execute a search warrant at the residence.
13Patterson remained handcuffed in the rear of Officer Burke’s cruiser until he was picked up by Toronto Police at approximately 12:55 a.m. on January 7, 2013.
14Officer Nyck Chung of Toronto Police Service took custody of Mr. Patterson at 12:55 a.m. He advised Mr. Patterson that he was under arrest for robbery and advised him of his right to counsel. Patterson said he understood and wished to contact a lawyer. They arrived at 41 Division at 1:14 a.m.
15Mr. Patterson was paraded on video before Sgt. Harold Chow at 1:34 a.m. In response to being advised again of his right to counsel Mr. Patterson said he would like to speak to a lawyer.
16Sgt. Chow had earlier been advised by someone in the Hold Up Squad that Mr. Patterson should not be given access to a phone. He cannot recall who he spoke to. Sgt. Chow was told that there were concerns related to an ongoing investigation and officer safety. He was not given and did not ask for any specifics of those concerns. On video Sgt. Chow told Mr. Patterson that he would not be permitted any phone calls.
17Det. Robert Lemaitre was a member of the TPS Hold Up Squad on January 7, 2013. He worked the day shift and eventually interviewed Mr. Patterson on video for some 45 minutes starting at 12:59 p.m.
18When Det. Lemaitre reported for duty that morning he received information about the ongoing investigation. There was a second suspect still at large and a search warrant for a residence in York Region was being drafted.
19Det. Lemaitre testified that the decision to delay Mr. Patterson’s access to counsel was made by Officers Di Passa and Abdel-Malik. Neither of those two officers testified on this application.
20Det. Lemaitre claimed he was concerned that a call by Mr. Patterson to counsel might somehow alert the outstanding second suspect as to the status of the investigation. He based that concern on unspecific anecdotal situations that he had heard about in the past.
21Sometime after 10:38 a.m. on January 7, 2013 Mr. Patterson was given access to duty counsel. That was just short of 12 hours after he had been arrested in York Region and over nine hours after he arrived at 41 Division.
22Mr. Patterson did not testify on this blended voir dire.
VOLUNTARINESS
23The fact that Mr. Patterson was arrested at gunpoint does not necessarily mean that any subsequent utterances were involuntary or the result of oppression. The police were dealing with a suspect related to an armed robbery. There was no suggestion of excessive or inappropriate force used by police in the course of the arrest. There was no evidence of injuries to Mr. Patterson, or complaints from him as to how he was handled.
24Mr. Patterson was seated in the back seat of a cruiser in handcuffs for almost an hour before he allegedly made unprompted utterances. There is no evidence of any promises, threats or inducements by the police that led to the utterances. While the length of time he remained in the cruiser is of some concern there is no evidence that it operated oppressively on Mr. Patterson. The officer in the cruiser throughout did not ask any investigative questions, save and except for particulars of the address referred to by Mr. Patterson.
25A confession will not be admissible if it is made under circumstances that cause a reasonable doubt as to voluntariness. The confessions rule also extends to protect a broader conception of voluntariness that focuses on the protection of the accused’s rights and fairness in the criminal process. Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused’s right to silence the jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons it is inadmissible. The analysis under the confession rule must be a contextual one.
R. v. Oickle 2000 SCC 38 at paras. 68-71.
26I am satisfied that the utterances by Mr. Patterson at approximately 11:40 p.m. on January 6, 2013 and 12:15 a.m. on January 7, 2013 were voluntarily made and admissible subject to the Charter application.
RIGHT TO COUNSEL
27Mr. Patterson was promptly advised of his right to counsel. From the outset he sought to exercise that right. The police held off asking investigative questions but there was a significant delay in facilitating access to counsel.
28Once a detainee indicates a desire to exercise the right to counsel the police have two obligations:
To provide the detainee a reasonable opportunity to access counsel, and
To “hold off” of eliciting incriminatory evidence from the detainee until the opportunity has been provided.
R. v. Prosper 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236
29The Supreme Court of Canada has set a narrow basis for what will constitute permissible delay in facilitating access to counsel upon arrest or detention.
To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill‑defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill‑defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words “without delay” mean “immediately” for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.
R. v. Suberu 2009 SCC 33 at para. 42
30On this application there was no evidence led from the officers who made the decision to delay access to counsel. The only information provided to this Court was the following:
i) the investigation related to an armed robbery
ii) a second suspect was still at large
iii) imprecise anecdotal concerns that a contact with counsel could interfere with the investigation
31The Supreme Court has recognized that concerns for officer or public safety may justify a delay in access to counsel. To come under that umbrella the Crown should at least present some specific evidence on the application to explain the significant concerns at the early stages of the investigation.
32The vague evidence and information presented on this application does not justify the delay in allowing Mr. Patterson to access counsel. On that basis there was a violation of s. 10(b) of the Charter.
APPLICATION TO EXCLUDE THE EVIDENCE
33In determining admissibility under s. 24(2) of the Charter the Court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system, having regard to the following:
i) the seriousness of the Charter infringing state conduct
ii) the impact of the breach on the accused’s Charter-protected interests, and
iii) society’s interest in the adjudication of the case on the merits
R. v. Grant 2009 SCC 32 at para. 71
34The significant delay in facilitating access to counsel might have been justified by evidence from the lead officers Di Passa and Abdel-Malik. This evidence was readily available to the Crown. While I have found that insufficient evidence was presented to justify the delay I do not find there was bad faith on the part of the officers who detained Mr. Patterson in York Region. This was not a flagrant or deliberate breach of the right to counsel.
35The Crown seeks a ruling on the admissibility of the utterances in the cruiser for use at trial if and when Mr. Patterson testifies. The impact on his Charter-protected interests is lessened by the fact that police did not ask investigative questions (other than one for clarification). This is not a case where Mr. Patterson was conscripted to provide evidence against himself.
36There is a significant societal interest in a trial on the merits.
37The onus is on the applicant to establish on a balance of probabilities that admission of the evidence would bring the administration of justice into disrepute.
R. v. Harper 1994 CanLII 68 (SCC), [1994] 3 S.C.R. 343 at para. 16
38A violation of s. 10(b) of the Charter will often, although not always, lead to exclusion of evidence obtained as a result of the violation. In this case there is no evidence that the delay in access to counsel affected Mr. Patterson’s behavior. In balancing the Grant factors the applicant has not established that the evidence should be excluded.
RESULT
39The utterances made by Mr. Patterson at 11:40 p.m. on January 6, 2013 and 12:15 a.m. on January 7, 2013 are admissible at trial.
Mr. Justice B. P. O’Marra
Released: February 5, 2015
COURT FILE NO.: CR-14-50000008
DATE: 20150205
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
OMAR PATTERSON
REASONS FOR JUDGMENT
Mr. Justice B. P. O’Marra
Released: February 5, 2015