R. v. Corner, 2016 ONSC 2045

CITATION: R. v. Corner, 2016 ONSC 2045

OSHAWA COURT FILE NO.: 15/13823

DATE: 20160323

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

KEENAN CORNER

Applicant

K. Saliwonchyk and L. Crawford, for the Respondent

S. DiGiuseppe and G. McInnes, for the Defendant

DATE OF DECISION: March 23, 2016

RULING ON BLENDED VOIR DIRE

RE: ADMISSABILITY STATEMENTS BY THE DEFENDANT

MCKELVEY J.:

Introduction

[1] The defendant in this action, Keenan Corner, is charged with second degree murder arising out of the death of Mr. Shabir Niazi. Mr. Niazi was shot to death on the afternoon of February 19, 2014.

[2] Following the shooting, Mr. Corner called 911 and the police attended at the home located at 39 Roosevelt Avenue in Ajax where Mr. Corner lived with his parents and siblings. Two police officers took statements from Mr. Corner at the scene. Mr. Corner then attended at 19 Division where he underwent a lengthy interview by police. He subsequently left the police station in the early morning hours of February 20, 2014. He was subsequently arrested and charged with second degree murder on March 1, 2014. Following his arrest he was once again interviewed by police. On March 2, 2014, there was a further statement by Keenan Corner which took place in the holding cells of the police station.

[3] In addition, during the course of Mr. Corner’s interview with the police at 19 Division on February 19, 2014, Mr. Corner met with his mother and father in the interview room. This statement was audio and video recorded by police.

[4] Two applications have been brought in relation to the statements made to police by Mr. Corner, and also with respect to the video recorded meeting with his parents. With respect to Mr. Corner’s statements to the police, an application has been brought by the Crown seeking an order allowing the Crown to introduce the statements, as part of its evidence in this matter, on the basis that these statements were voluntary. The defence has brought an application seeking to exclude the statements under sections 7, 8, 9 and 10 of the Charter. With consent of both parties, both the applications were heard together.

[5] During the voir dire, the following witnesses were called by the Crown:

1. Police Constable Sheldon Micalef. Officer Micalef was the officer who first responded at the scene following the 911 call;

2. Police Constable Ken MacKinnon. Officer MacKinnon also attended at the scene subsequent to Officer Micalef’s arrival;

3. Detective Joel Melnick. Detective Melnick conducted the initial interview of Keenan Corner at 19 Division on the evening of February 19 and 20, 2014;

4. Detective James Leipsig. Detective Leipsig participated for a period of time during the interview initiated by Detective Melnick on the evening of February 19/20, 2014;

5. Detective Constable Trudy Harris. Detective Harris worked with the Forensic Unit and took a gunshot residue sample from Keenan Corner’s hands during the interview at 19 Division on February 19/20, 2014;

6. Detective Mike Horrocks. Detective Horrocks is a Detective in the Homicide Unit and was in charge of the investigation. He also conducted the interview of Keenan Corner following his arrest on March 1, 2014.

[6] The defence called as a witness the mother of Keenan Corner, Eunice Corner. Ms. Corner testified with respect to the meeting she and her husband attended with their son on the evening of February 19, 2014, which was video recorded by the police.

The Factual Background

[7] On February 19, 2014, Officer Micalef was assigned to conduct surveillance on Keenan Corner at his known residence located at 39 Roosevelt Avenue in Ajax. The reason for this assignment is that Mr. Corner was suspected of being involved in the drug trade. He arrived in the area at approximately 4:25 p.m. in an unmarked police car. He conducted surveillance of the premises from a location approximately 100 metres north of the residence. He was aware of a report that Mr. Corner might have possession of a firearm.

[8] In cross-examination, Officer Micalef stated that he initially drove by the residence upon his arrival. He observed the garage door to the residence was closed. At 4:31 p.m., Officer Micalef made a note that someone went on the property and walked up the driveway of the residence. This person came back out and then went to the side of the home. When he subsequently attended at the residence he was able to confirm that the person he had seen walking on the driveway was Mr. Corner. He was to able identify him from a photograph he had seen prior to commencing his surveillance. He did not see Mr. Corner leave the property and he assumed he must have left the property prior to his arrival at 4:25 p.m. Officer Micalef did not see anyone else come onto the property prior to 4:33 p.m. He did not hear the sound of any gunshots prior to responding to the 911 call.

[9] At 4:33 p.m., a radio call came through that a shooting had occurred at 39 Roosevelt Avenue. Officer Micalef promptly walked towards the residence where the front door opened and he saw Mr. Corner speaking on the cell phone. He had not seen anyone leave the premises during his surveillance, he had his firearm drawn and by his side as he approached the home. When he arrived at the front door he gave Mr. Corner a quick pat-down search. He did not locate any weapon. He asked Mr. Corner who had been shot and was told that the person was in the garage. He then took Mr. Corner with him to the garage. He did not want to let him out of his sight as he had information that Mr. Corner had possession of a gun. When they got to the garage, the garage door was open. He saw a body in the garage face down. He then left the garage, went over to Mr. Corner and asked him who the victim was. He was told that the victim was Shabir Niazi. He then asked Mr. Corner who shot him. Mr. Corner stated that he did not know and went on to explain they had been trying to sell some weed and had been robbed by three Middle Eastern guys.

[10] Constable MacKinnon arrived on scene shortly after Officer Micalef and while that officer was in the garage. Constable MacKinnon had been on general patrol when he heard a call on the radio about a shooting at 39 Roosevelt Avenue. He estimated that it took a minute or less to arrive at the scene. His estimated arrival time was about 4:35 p.m. He went on foot to the residence and walked up the driveway with his firearm drawn by his side. He saw Officer Micalef at the edge of the garage and Mr. Corner on the driveway. He asked Mr. Corner to show him his hands to make sure he did not have a weapon. After Officer Micalef asked Mr. Corner to show him his hands, Mr. Corner crouched on the driveway and Officer MacKinnon re-holstered his firearm. Mr. Corner showed him his hands and told him he was on the phone to 911. Mr. Corner had a cell phone in his hand at the time. Officer MacKinnon then asked him if he had any weapons. Mr. Corner said that he had a knife in his pocket. Officer MacKinnon asked him to put his hands on the car in the driveway. He then proceeded with a pat-down search and removed a knife from one of Mr. Corner’s pockets.

[11] Officer MacKinnon then asked Mr. Corner to move down the driveway, away from the crime scene. He initially asked Mr. Corner to sit in a police cruiser with his legs sitting out of the cruiser. He then asked Mr. Corner to hang up on the 911 call. Keenan Corner sat in the cruiser for two to three minutes. Officer MacKinnon then asked Mr. Corner to walk back to his cruiser in order to get more information from him. Both of them went to Officer MacKinnon’s car. Mr. Corner went into the back seat with the door closed. Officer MacKinnon described Mr. Corner as being eager to provide information. He asked him what happened in order to get information broadcast to other police officers in the vicinity. Mr. Corner then reported that he had been in the garage with Mr. Niazi. They had been expecting some customers when three Middle Eastern men came in and one of them had a handgun. Mr. Niazi got up and was shot by one of the men. He then proceeded to give a description of the men. He also identified one man as “Smalls” and another as “Sharika”, and Officer MacKinnon conveyed this information over the radio to assist in the investigation.

[12] Subsequently, Mr. Corner agreed to go to 19 Division to give a statement. This statement was videotaped. The interview was conducted by Detective Melnick. Mr. Corner again gave a detailed account of how he and Mr. Niazi were waiting for some customers in the garage in order to complete a drug deal. He went into detail about the arrival of three men, one of whom was reported to have shot his friend Shabir Niazi.

[13] Detective Melnick interrupted the interview at sometime before 7:45 p.m. He then proceeded to a briefing, where officers exchanged information about information they had received from witnesses. It was apparent from the briefing that the information received from Mr. Corner varied in a number of significant respects from information received from these other individuals.

[14] When Detective Melnick went back to continue talking with Mr. Corner after the briefing, there was a clear change of tone in the interview. Mr. Corner was confronted with a number of the inconsistencies between his information and that obtained from others. Detective Melnick’s approach was far more aggressive and confrontational. During this portion of this interview, Detective Leipsig also participated in the questioning of Mr. Corner. Also during this period, Mr. Corner’s mother and father attended in the interview room where they had a discussion with their son as to what happened.

[15] Following the end of the interview, Mr. Corner left the police station and was given a ride to a local hostel.

[16] Mr. Corner was not given a caution or advised of any section 10 Charter rights prior to the commencement of his interview with Detective Melnick. At the commencement of his interview with Detective Melnick, Mr. Corner was given a KGB warning. This warning advised Mr. Corner that his statement to police was an important part of their investigation, and that it was a serious criminal offence to make any false statement to the police and to wrongly accuse someone of a crime, or cause police to enter into an investigation of another person. He was also advised that if he later gave evidence that was different than what he said in his statement that could be another offence, and that his statement given to the police might be used against him if he were ever charged of one of those offences.

[17] In the second part of the interview with Detective Melnick, Mr. Corner was advised that the police had spoken with other individuals and he was told he did not have to talk to Detective Melnick if he did not want to. He was told that everything said in the interview was admissible in court. He was further told that the police did not believe he had been telling the truth, and that if he would like to speak to a lawyer he would be put in contact with a lawyer, and if he did not have a lawyer he could speak with duty counsel. This appears to have been in relation to a possible obstruction of justice charge relating to the police assertion that he was not telling the truth. Detective Melnick told Mr. Corner:

I’m just saying – telling you that you haven’t been telling me the truth. Now, remember when you – you had the – the KGB statement there taken that if you lied to the police or you mislead the police, you could find yourself facing charges?

[18] After he left the police station, Mr. Corner was put under surveillance by the police. During the course of that surveillance, police observed Mr. Corner apparently looking for something in a snow-covered park area. Police conducted a further investigation and discovered a Glock revolver which turned out to be the murder weapon. With this discovery, Mr. Corner was formally declared to be a suspect by Detective Horrocks and he was arrested on March 1, 2014.

[19] Following his arrest, Mr. Corner was interviewed by Detective Horrocks. During this interview he was taken to the park where the murder weapon was found. In place of the Glock pistol, which had been seized by the police, there was a fake gun planted in the same location. This fake gun was “discovered” in the presence of Mr. Corner, who was then taken back to the police station for further questioning.

[20] At the time of his arrest and prior to the interview with Detective Horrocks on March 1, 2014, Mr. Corner was given a caution as well as his section 10 rights. He consulted with counsel on two occasions prior to any questioning by Detective Horrocks. As a result, the issue relating to the statement to Detective Horrocks relates to whether it was voluntary.

[21] On the day following, Detective Horrocks had a further discussion with Mr. Corner in the cells. During the course of that discussion, Mr. Corner disclosed the identity of another possible perpetrator who he felt was responsible for the death of Mr. Niazi.

[22] During all of the questioning by police, Mr. Corner continued to deny any responsibility for the shooting of Mr. Niazi. The Crown seeks to introduce the statements for the following reasons:

1. Mr. Corner acknowledges that he was in the garage at the time Mr. Niazi was shot. Other than the three individuals who were alleged to have come into the garage at the time of the shooting, Mr. Corner agrees that there was no one else in the garage at the time of the shooting;

2. The Crown relies on the exculpatory statements made by Mr. Corner as post–offence conduct, which will support a conclusion that he fabricated the story of the alleged three Middle Eastern men in order to divert attention from himself as the actual shooter;

3. In the event that the defendant elects to give evidence at his trial, the Crown wishes to have the statements available for purposes of cross-examination;

4. The Crown advised that the defence has given notice that it may call a psychiatric expert at trial. The evidence of the statements made by Mr. Corner after the shooting may be relevant to establishing the defendant’s state of mind after the shooting.

[23] There is considerable evidence which casts doubt on the version of events described by Mr. Corner. The evidence of Officer Micalef, following his arrival in the area about 4:25 p.m., is that he did not hear any shots fired prior to the radio call at 4:33 p.m. In addition, there were two individuals located in the park across from Mr. Corner’s home. Ken Widdifield and Paul Howe heard what they believed were a series of gunshots from the park across the road from Mr. Corner’s residence, where they had been drinking and smoking drugs. At some time after that they saw Mr. Corner and Matthew Barras moving about outside Mr. Corner’s house, before Matthew Barras left the residence and walked past them appearing to adjust an item in the front of his pants as he walked. Further, there is evidence from two women who were in the vicinity who did not see anyone leave the Corner residence.

[24] It is also apparent that there are many internal inconsistencies in the information given by Mr. Corner to the police. For example, he initially told police that Matthew Barras was not in his home at the time of the shooting. Later he acknowledged that Matthew Barras was there, and that Matthew Barras had asked that he not disclose of his presence at the home at the time of the shooting.

[25] Finally, if there were any other individuals who came on the Corner property, there is no evidence to suggest that they arrived or left other than by the driveway. Because the backyard was covered in snow, police later examined the backyard area for footprints. There were no footprints in the backyard which led off the Corner property.

[26] With this general background, I will now turn to the various statements given by Mr. Corner as described above.

Statements Given by Mr. Corner at the Scene

[27] The position of the defence is that Mr. Corner was detained from the point when Officer Micalef approached the door and conducted a pat-down search. The defence refers to the fact that Officer Micalef took physical control of Mr. Corner and walked him to the garage. In addition, both Officer Micalef and Officer MacKinnon approached the premises with their guns drawn. Officer MacKinnon demanded that Mr. Corner show him his hands, conducted a pat-down search and removed a knife from one of Mr. Corner’s pockets. The defence also asserts that Officer MacKinnon’s actions in putting Mr. Corner in a police cruiser are further evidence of detention.

[28] In light of the fact that Mr. Corner was detained, the defence argues that he should have been advised of his section 10 Charter right to counsel.

[29] The defence also argues there was a section 7 violation, and there is reasonable doubt as to whether statements made by Mr. Corner to the officers were voluntary. The defence relies heavily on the failure of the police officers to give Mr. Corner a caution prior to asking any questions. The defence maintains that Mr. Corner was a suspect by the time Officer Micalef came onto the property. The defence suggests that there was more than sufficient information available to Officer Micalef to make him a suspect. In this regard, the defence relies on the knowledge by Officer Micalef of a report that Mr. Corner might have access to a firearm. The defence also relies on the fact that Mr. Corner was suspected of trafficking in drugs. Further, Officer Micalef had not seen anyone enter or leave the premises since his arrival for surveillance, and had not heard any shots prior to receiving notification of the shooting at the residence. The defence referred to Mr. Corner’s call to 911 as a neutral factor. According to the defence, the inference that can be drawn from the above facts is that either the shooting happened prior to Mr. Corner’s return to the residence and he then called 911, which the defence believes would be an inherently suspicious thing to do; the other inference is that the shooting happened after Mr. Corner’s return to the residence, leaving Mr. Corner as the only person in the garage at the time of the shooting given that there were no other persons seen leaving or departing from the residence. Based on those facts, the defence argues that a reasonably competent investigator would be alert to the possibility that Mr. Corner might have been involved in the shooting, even before he made any statement to the police.

[30] The defence also asserts that there was an inadequate recording of any statements made to the officers on the scene. They were not audio or video recorded. The only records of the statements were the notes made by the officers of the information provided by Mr. Corner. There was no record of the questions asked of Mr. Corner by Officer MacKinnon.

[31] I will first address the issue of whether Mr. Corner was detained at the scene and whether there was an obligation to advise him of his section 10 Charter rights. The Crown’s position is that there was not a constitutional detention in this case. If there was a detention, the Crown argues, that it occurred in circumstances where the length of the detention was extremely short and there was no reasonable opportunity to advise Mr. Corner of his section 10 rights before the detention ended. The Crown argues that because any detention ended before he could reasonably have been advised of his section 10 rights, there was no subsequent need to advise of that right.

[32] A key consideration in considering whether Mr. Corner was detained at the scene entails a careful review of the Supreme Court of Canada decision in R v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32. In that case, the court considered the meaning of detention under the Charter. The court notes that a detention triggers rights which are engaged by the vulnerable position of the person who has been taken into effective control by the state authorities. These rights are principally concerned with addressing the imbalance of power between the state and the person under its control. More specifically, they are designed to ensure that the person whose liberty has been curtailed retains an informed and effective choice whether to speak to state authorities, consistent with the principle against self-incrimination. They also ensure that the person who is under the control of the state is afforded the opportunity to seek legal advice in order to assist in regaining his or her liberty.

[33] The court goes on to state that the juxtaposition of “imprisoned” with “detained”, suggests that a “detention” requires a significant deprivation of liberty. The court, therefore, rules out situations where the police are acting in a non-adversarial role. The court notes that a reasonable person would understand a police officer who attends a medical emergency on a 911 call is not detaining individuals he or she encounters, even if the police in taking control of the situation effectively interfere with an individual’s freedom of movement. Such deprivations of liberty will not be significant enough to attract Charter scrutiny because they do no attract legal consequences for the concerned individuals.

[34] Another example cited by the court is when police officers approach by-standers in the wake of a crime to determine if they witnessed the event, and to obtain information that may assist in their investigation.

[35] In Grant, supra, the court explained that detention refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established where the individual has a legal obligation to comply with a restrictive request or command, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

[36] The court provided guidance where there is no physical restraint or obligation. To determine whether the reasonable person would conclude that he or she had been deprived by the state of the liberty of choice, the court is entitled to consider the following factors:

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[37] In the present case, I have concluded that there were two detentions of Mr. Corner at the scene of the shooting. Officer Micalef, when he arrived, took control of Mr. Corner. He conducted a pat-down search and escorted him to the garage area. These actions constituted a significant deprivation of his liberty. Similarly, Officer MacKinnon, when he arrived, conducted a pat-down search and removed a knife from one of Mr. Corner’s pockets. In my view, Mr. Corner was physically detained for two periods of time, once by Officer Micalef and subsequently by Officer MacKinnon. This is reflected in the fact that his movements were controlled by the officers, which would constitute a significant physical restraint.

[38] I have also concluded that the periods of detention of Mr. Corner were very brief. Constable Micalef testified that he holstered his weapon after he entered the garage and discovered the body of Mr. Niazi. Similarly, Officer MacKinnon demanded that Mr. Corner show him his hands upon his arrival in the driveway. He also conducted a pat-down search where Mr. Corner was standing in the driveway when he showed him his hands. Mr. Corner subsequently crouched down by a car in the driveway. At that point, Officer MacKinnon re-holstered his weapon. He proceeded with the pat-down search. The end of physical restraint would have been readily apparent to Mr. Corner, and there is no evidence that he was physically restrained after the pat-down search conducted by Officer MacKinnon.

[39] I have considered whether there is any evidence of psychological restraint. There may well have been an element of psychological restraint at the time the police approached Mr. Corner with their guns drawn. Clearly, he would understand the necessity to cooperate with the officers’ demands and the pat-down searches. However, once those physical restraints had ended, I do not see any basis for a conclusion that Mr. Corner’s detention continued on a psychological basis. The fact that the police who initially arrived had their firearms drawn needs to be considered in the context that they were responding to a reported shooting. This was not a situation where police took an adversarial position with Mr. Corner after the initial physical detentions. So, for example, police did not position themselves in front and behind Mr. Corner like in R. v. Grant supra. To the contrary, Officer Micalef left the scene very shortly after coming out of the garage, leaving only Officer MacKinnon in the presence of Mr. Corner. This would have sent a clear signal to Mr. Corner that he was no longer seen as a potential threat, and that police were not attempting to control his freedom. Mr. Corner was subsequently asked to leave the crime scene. However, a reasonable person in Mr. Corner’s position would understand that in doing so the police were focused on taking control of the crime scene. As noted in Grant, such conduct is not sufficient to constitute a constitutional detention. Once each of the brief detentions had ended Mr. Corner was treated like a witness and the focus of the police officers was on obtaining information from Mr. Corner about the shooting. Clearly, this is what Mr. Corner must have expected having made the 911 call.

[40] It would have been apparent to a person in Mr. Corner’s position at this point, that police were not attempting to detain him, but rather to solicit information as part of their investigation.

[41] The defence suggests that taking Mr. Corner to two police cruisers is a strong indication of detention. There is certainly case law which supports a conclusion that placing an individual in a police cruiser is a sign of detention. For example, in R. v. Yamka, 2011 ONSC 405, the defendant was placed in the rear seat of a police cruiser for her safety. It was agreed that the defendant could not get out of the cruiser, and had she tried to leave the police officer would have stopped her. On appeal, Justice Durno concluded that the defendant was detained because a reasonable person would conclude “that by reason of the state conduct, the officer helping her into the cruiser with no evidence of any accompanying words, that her liberty interests were restrained”. In addition, the officer was singling out the defendant for a focused investigation.

[42] In the present case, however, Mr. Corner was initially placed into a cruiser where the door was open and he was, therefore, not confined. Subsequently, Officer MacKinnon asked Mr. Corner to come back to his cruiser and this was so they would have a warm place to sit. Both Officer MacKinnon and Mr. Corner got into the car, with Mr. Corner going into the back seat. Officer MacKinnon then proceeded to ask Mr. Corner what had happened.

[43] On cross-examination, Officer MacKinnon was asked what he would have done if Mr. Corner had left the scene. Officer MacKinnon indicated he would have followed Mr. Corner, but there is no evidence that he would have stopped him from leaving.

[44] I accept Officer MacKinnon’s evidence that the purpose of asking Mr. Corner to go into the police cruiser was so that he and Mr. Corner would be in a comfortable environment while they discussed the circumstances of what had occurred. This incident occurred in the middle of February when it was cold outside. Given that the premises at 39 Roosevelt Avenue were being secured as a crime scene, there would not appear to have been any other quiet, comfortable alternative to sit down with Mr. Corner.

[45] The evidence of Officer MacKinnon is that he walked behind Mr. Corner as they went to his car. There was, therefore, no physical control or restraint exercised by Officer MacKinnon. In my view, it would have been obvious to Mr. Corner that sitting in the police cruiser was the only viable option to have a comfortable environment in which to speak to Officer MacKinnon. Further the questions directed to Mr. Corner by Officer MacKinnon were consistent with him being a witness which must have been consistent with his expectation as noted above. I conclude in the circumstances, from a psychological perspective Mr. Corner would not perceive that he was being detained, due to the fact that he was asked to sit in the cruiser while Officer MacKinnon took a statement from him.

[46] I have also considered whether the brief detention, which I have found occurred on the driveway and the pat-down search, constituted a Charter breach by the police officers involved. I have concluded that these actions were fully justified in the circumstances.

[47] In the Supreme Court of Canada decision in R. v. Mann, 2004 SCC 52, [2004] 3 SCR 59, the court considered the right of police to detain persons for investigative purposes. The court noted that given their mandate to investigate crime and keep the peace, “police officers must be empowered to respond quickly, effectively and flexibly to the diversity of encounters experienced daily on the front lines of policing”. The court then considered the guiding principles which apply to the use of this police power. The court notes that an investigative detention, “must be viewed as reasonably necessary on an objective view of the totality of the circumstances forming the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or ongoing criminal offence.” In its summary of the guiding principles, the court states:

…police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case.

[48] In this case, both Officer Micalef and Officer MacKinnon were acting in the course of their duties to investigate a criminal offence when they arrived at the residence. In cross-examination it was suggested to Officer Micalef that he must have been suspicious as he approached the residence because he had not heard any gun shots and that he, therefore, probably thought the shooting occurred prior to his arrival to conduct surveillance. Officer Micalef disagreed and stated that the fact he had not heard any shot was concerning to him. He was concerned that he might be getting set up to be shot himself. His significant safety concerns were because he was aware there are people who want to kill a police officer. He thought the 911 call might have been a fake call by persons wanting to set up the shooting of a police officer. This rather chilling concern was highlighted by the fact that he understood, based on an earlier report to police, that Mr. Corner might have access to a handgun. Officer Micalef’s evidence on these issues was, to say the least, compelling and credible.

[49] Officer MacKinnon testified that he was also concerned for his safety when he initially arrived at the residence. He had been taught what he described as the “one plus one rule”. That rule suggests that where there is one weapon involved, police officers should assume there might be a second.

[50] It is apparent in reviewing the facts in the present case that they do not align themselves identically to the principles outlined in the Mann decision. In particular the police officers did not have reasonable grounds to suspect that Mr. Corner was involved in the shooting. On the contrary Officer Micalef was initially concerned that there might not have been a shooting and he was being set up to be shot himself. The reasoning in the Mann decision was framed more broadly in the decision of the Supreme Court of Canada in R. v. MacDonald, 2014 SCC 3, [2014] SCJ No.3. In that case the court noted that safety searches will generally be conducted by police as a reactionary measure. They will generally be warrantless, as the police will generally not have sufficient time to obtain prior judicial authorization for them. In the MacDonald case court noted that a court must first ask itself whether the action falls within the general scope of a police duty imposed by statute or recognized in common law. In this case it is clear that the police were acting in accordance with their responsibility to investigate a shooting as reported in the 911 call.

[51] The second issue which a court must consider is whether the action of police constituted a justifiable exercise of powers associated with their duty. The court noted that the interference with liberty must be “necessary” for the carrying out of the particular police duty and it must be “reasonable” having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference. The factors which the court set out in determining whether a police power exists and in defining the limits of that power were set out as follows in the MacDonald decision:

1. Importance of the duty: no one can reasonably dispute that the duty to protect life and safety is of the utmost importance to the public good and that, in some circumstances, some interference with individual liberty is necessary to carry out that duty.

2. Necessity of the infringement for the performance of the duty: when the performance of the police duty requires an officer to interact with the individual who they have reasonable grounds to believe is armed and dangerous, an infringement on the individual liberty may be necessary.

3. Extent of the infringement: the infringement on the individual liberty will be justified only to the extent that is necessary to search for weapons. Although the specific manner (be it a pat-down, or the shining of a flashlight, as in this case, the further opening of a door) in which a safety search is conducted will vary from case to case, such a search will be lawful only if all the aspects of the search serve a protective function. In other words, authority for the search runs out at the point at which the search for weapons is finished. The premise of the Collins test - a warrantless search is premised to be unreasonable unless it can be justified – must be borne in mind in determining whether the interference with the individual liberty involved in a safety search is reasonable.

[52] I have concluded that all of the above factors have been satisfied in the present case. There was a reasonable basis for both Officer Micalef and Officer MacKinnon to conclude that Mr. Corner might be armed. When Officer Micalef came onto the property his subjective concern was that he might be getting set up to be shot himself as he had not previously heard any gun shots during his short surveillance of the home. While there was no other evidence to support this possibility and it might accurately be described as a somewhat speculative concern I view Officer Micalef’s actions to conduct a brief pat-down search and require Mr. Corner to walk with him to the garage as being entirely reasonable in order to ensure his own safety. In evaluating the officer’s action I am of the view that the court must consider not only the degree of risk, but also the potential consequences should that risk materialize. In this case there is not a lot of evidence to support the suspicion that it was a fake 911 call designed to facilitate a police shooting. However, while the probability of that scenario was not high the potential consequences for the police Officer in that situation were extreme. In balancing these two factors I conclude that Officer Micalef’s actions were reasonably necessary. His decision to conduct a brief pat-down search and to require Mr. Corner to accompany him to the garage went no further than to reasonably ensure his own safety. Once Officer Micalef went to the garage and saw that there had been a shooting as reported he did not take any further steps to infringe on Mr. Corner’s liberty. Officer Micalef’s assertion which I find to be entirely credible was that once he found the body of Mr. Niazi in the garage, he did not have any concern about Mr. Corner being a suspect in the shooting. There was no evidence that Officer Micalef took any further steps to restrict Mr. Corner’s liberty after that point.

[53] Similarly I find that the actions of Officer MacKinnon were entirely reasonable on his arrival at the scene. Officer MacKinnon also arrived within moments of a reported shooting. Mr. Corner was seen on the driveway at the time of his arrival. While Officer MacKinnon did not at this time have any real evidence to connect Mr. Corner to the shooting he was not in a position to rule out the possibility that Mr. Corner might have a gun. Thus, while the potential risk facing Officer MacKinnon from Mr. Corner was small, the potential consequences for Officer MacKinnon if Mr. Corner had a gun were potentially life threatening. When balancing both the risk and the potential consequences common sense suggests that the action of Officer MacKinnon was reasonable and went no further than was reasonably necessary to ensure his safety.

[54] I conclude, therefore, that in the present case there were no section 8 or 9 Charter breaches in connection with the brief detentions and searches of Mr. Corner by either Officer Micalef or Officer MacKinnon.

[55] Given my conclusion that there was a brief detention of Mr. Corner, I must next consider whether the police officers breached Mr. Corner’s section 10 Charter right to be advised of the right to counsel.

[56] In R. v. Suberu, 2009 SCC 33, [2009] S.C.J. 33, the Supreme Court considered the meaning of “without delay” in the context of section 10(b), which provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. The court concluded that “without delay” means “immediately” for the purposes of section 10(b). However, this obligation is “subject to concerns for officer or public safety and such limitations as prescribed by law and justified under section 1 of the Charter”.

[57] I accept the Crown’s position that when Officers Micalef and MacKinnon arrived on scene they had reasonable concerns about their safety, and that it would have been impractical and unreasonable to expect the police officers to interrupt their activities to provide Mr. Corner with his section 10(b) rights. Officer Micalef, for example, was properly and reasonably occupied with concerns about his own safety, and to go to the garage where the shooting occurred and ensure that none of the perpetrators for the shooting were still on the premises. By the time it was practical for either Officer Micalef or Officer MacKinnon to provide the section 10(b) rights to Mr. Corner, I find that his detention had ended.

[58] The Crown takes the position that there was no longer any duty for Officer Micalef or Officer MacKinnon to provide Mr. Corner with his section 10 rights advice. Although there does not appear to be any authority directly on point, I agree with the Crown’s position. As noted previously in relation to the decision by the Supreme Court in Grant, detention identifies the point at which rights subsidiary to detention, such as the right to counsel, are triggered. Those rights are principally concerned with addressing the imbalance of power between the state and the person under its control. More specifically, the court states:

…they are designed to ensure that the person whose liberty has been curtailed retains an informed and effective choice whether to speak to state authorities, consistent with the overarching principle against self-incrimination. They also ensure that the person who is under the control of the state be afforded the opportunity to seek legal advice in order to assist in regaining his or her liberty.

[59] I accept the Crown’s position that if officers are not able to provide the section 10 advice because of safety concerns, and if the detention ends before the section 10 rights can reasonably be given, the underlying rationale for providing those rights is no longer in existence and it would not make sense to require police to give a person section 10 rights advice where the underlying rationale for giving that advice is no longer operative.

[60] In the circumstances of this case, therefore, I conclude that there were no Charter breaches by the police officers in responding to the 911 call at 39 Roosevelt Avenue.

[61] In the event that I am in error in my conclusion on this issue, and section 10 rights advice should have been given, I must consider whether the evidence should be admitted under section 24(2) of the Charter. It is significant to note in this regard that at paragraph 91 of the Grant decision, the Supreme Court states:

There is no absolute rule of exclusion of Charter-infringing statements under s. 24(2), as there is for involuntary confessions at common law. However, as a matter of practice, courts have tended to exclude statements obtained in breach of the Charter, on the ground that admission on balance would bring the administration of justice into disrepute.

[62] The first enquiry under the Grant test focuses on the seriousness of the Charter infringing state conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to disassociate themselves from that conduct. With respect to statements by an accused, the Supreme Court notes that police conduct in obtaining statements has long been strongly constrained. The preservation of public confidence in the justice system requires that police adhere to the Charter in obtaining statements from a detained person. In the present case, however, the Charter breach, if it existed, would appear to be less serious given that there was no opportunity for the police officers to give a caution before the end of the detention, given that the detention itself was so brief. Thus, the underlying rationale for providing a Charter caution had dissipated by the time there was an opportunity to provide a caution and advise Mr. Corner of his section 10 rights. In my view, this would significantly lessen the seriousness of any Charter violation.

[63] The second enquiry focuses on the extent to which the breach actually undermined the interest protected by the right infringed. In my view, the impact on this case is significantly lessened, because for reasons that I will expand upon later in this decision I have concluded that a conscious decision was made by Mr. Corner to tell the story, which he did to the police prior to making the 911 call. In Grant, it is noted that in exceptional circumstances where it can be confidently said that the statement in question would have been made, notwithstanding the Charter breach, the impact of the breach on the accused’s protected interest in informed choice may be less. I conclude that this is the situation in this case.

[64] The third issue is society’s interest in adjudication on the merits. Clearly, the charge which Mr. Corner faces is one of the most serious charges under our criminal law. Society does have a legitimate interest in truth finding. However, I am mindful that the admission of unreliable evidence serves neither the accused’s interest in a fair trial, nor the public interest in uncovering the truth. The court in Grant notes that being detained by the police and without a lawyer, a suspect may make statements that are based more on a misconceived idea of how to get out of his or her predicament than on the truth. However, in this case, for reasons which will be expanded on later in these Reasons, I have concluded that the story reported by Mr. Corner was not formed as a result of his detention by the police but, rather, was formed prior to his 911 call. Thus, if the information he reported was false, it was because he had made a conscious decision to do so and this decision was unrelated to any conduct or detention by the police.

[65] Having balanced all of the factors as mandated by section 24(2), I have concluded that the admission of these statements by Mr. Corner to the police would not, on balance, bring the administration of justice into disrepute. The public interest in an adjudication of this case, on its merits, weighs strongly in favour of its admission. The other criteria are significantly attenuated by the unique features of the case. The result is, that I have concluded that the unique features of this case support the conclusion that admitting this evidence would not bring the administration of justice into disrepute.

[66] I turn now to a consideration of whether the Crown has satisfied its burden to establish beyond a reasonable doubt that the statements made by Mr. Corner at the scene were voluntary.

[67] The leading case in this area of law is the Supreme Court of Canada decision in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3. The confessions rule is a longstanding common law principle. The underlying rationale is that a confession should not be received in evidence if it is made under circumstances that raise a reasonable doubt about its voluntariness. This is reflected in the R. v. Oickle, supra, decision where Justice Iacobucci states:

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, this Court’s 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.

[68] In the Oickle decision, the Supreme Court makes it clear that a court must consider all of the circumstances surrounding the giving of the statement in a contextual fashion. This is reflected in the comments of Justice Iacobucci, when he states:

Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one. In the past, courts have excluded confessions made as a result of relatively minor inducements. At the same time, the law ignored intolerable police conduct if it did not give rise to an “inducement” as it was understood by the narrow Ibrahim formulation. Both results are incorrect. Instead, a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all the aspects of the rule discussed above.

[69] The factors a court will take into account in considering voluntariness include threats or promises, oppression, the requirement for an operating mind and police trickery.

[70] In the case before me, there is no evidence which would suggest that Mr. Corner did not have an operating mind. There is no suggestion that in any of the statements made by Mr. Corner that he did not understand what he was saying, or that he was saying it to police officers who could use it to his detriment.

[71] One of the key issues raised by the defence is whether Mr. Corner should have been given a caution. The requirement for a caution was considered by the Supreme Court in R. v. Singh, 2007 SCC 48, [2007] S.C.J. 48. In that case, the court noted that a common form of the police caution involves advising the person of their potential jeopardy and asking if they wish to say anything in answer to that jeopardy. The person is told “you are not obliged to say anything, but whatever you do say may be given in evidence”.

[72] In commenting on when a caution should be given, the court stated:

The importance of reaffirming the individual’s right to choose whether to speak to the authorities after he or she is detained is reflected in the jurisprudence concerning the timing of the police caution. Rene - Marin, in his text Admissibility of Statements (9^th ed. (looseleaf)), at pp. 2-24.2 and 2-24.3, provides a useful yardstick for the police on when they should caution a suspect:

The warning should be given when there are reasonable grounds to suspect that the person being interviewed has committed an offence. An easy yardstick to determine when the warning should be given is for a police officer to consider the question of what he or she would do if the person attempted to leave the questioning room or leave the presence of the officer where a communication or exchange is taking place. If the answer is arrest (or detain) the person, then the warning should be given.

These words of advice are sound. Even if the suspect has not been formally arrested and is not obviously under detention, police officers are well advised to give the police caution in the circumstances described by Marin.

[73] A serious issue in this case is what the trigger should be for giving a police caution. The defence argues that the caution should be given where there are reasonable grounds to suspect that the person being interviewed has committed an offence. The Crown argues that the threshold is higher and is based on whether there are reasonable and probable grounds to arrest or detain a person. It is apparent that the wording in the Singh, supra, decision is somewhat equivocal on this point. On the one hand the court refers to the importance of giving a caution after a person is detained, but in the quotation there is also a reference to the caution being given where there are reasonable grounds to suspect that the person has committed an offence. Later in the quotation, however, there is reference to the caution being given where it is expected that the person will be detained.

[74] There appears to be a lack of any further appellate authority on this issue. However, trial decisions do suggest that the threshold for giving a caution is well below the threshold suggested by the Crown. So for example, in R. v. Chui, 2015 ONSC 552, [2015] O.J. No. 382, Justice Clark commented, after referencing the Singh decision, that it is generally accepted that police are not required to caution a person unless they “suspect the person of criminal activity”, but the need to caution a person must be based on more than mere speculation or even reliable information that may require further inquiry.

[75] In R. v. Belbin, 2015 ONSC 5346, [2015] O.J. No. 4843, the court concludes that there are circumstances in which an individual is neither under arrest nor detention but where caution is, nevertheless, mandated. The court adopts the reasoning in R. v. Dalzell, [2003] O.J. No. 4901, where it is suggested that the trigger for an expectation that the police will give a person being questioned a caution respecting the right to silence:

…must be less than reasonable grounds to believe that the person committed an offence, but must surely be more than speculation, knowledge that other persons suspect that person, or even reliable information that, to use the words of the Major Case Manual, a person’s “background, relationship to the victim or the opportunity to commit the offence may warrant further enquiry”.

[76] A similar conclusion was reached by Poupore J. in R. v. Carroll, [2009] O.J. No. 3993. In that decision the Crown argued that even if the defendant was a “suspect” at the time of the interview he was not detained and, therefore, there was no requirement that a caution be given. Poupore J. expressed some doubt about this conclusion and stated:

I am not so sure that the above cases stand so categorically for the proposition put forward by the Crown. As a consequence I will consider whether Reginald Carroll was at any time on May 17, 2008, a police suspect.

[77] Until this issue has been clarified by appellate authority I am inclined to adopt the test set out by Dambrot J. in R. v. A.D., [2003] O.J. No. 4901, which has been referred to previously. The test, as set out in that decision, is as follows:

The trigger for an expectation that the police will give a person being questioned a caution respecting the right to silence must be less than reasonable grounds to believe that the person committed an offence, but must surely be more than speculation, knowledge that other persons suspect that person, or even reliable information that…a person’s “background, relationship to the victim or the opportunity to commit the offence may warrant further inquiry”.

[78] As noted in R. v. Carroll, supra, to cast the net wider than this is to overemphasize an individual’s right to silence at the cost of stifling a police investigation. If there is a realistic prospect, based on all available evidence that the person with whom the authorities are speaking may have been associated with the commission of the crime under investigation, then that person should be told about the right to silence. Such a test, in my view, reflects the comments made by the Supreme Court in R. v. Mann supra that police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect that an individual is connected to a particular crime and that such a detention is necessary. The test is also consistent with comments made by the Supreme Court in R. v. Chehil, 2013 SCC 49, [2013] 3 SCR 220, where the court considers the reasonable suspicion standard in a totally different context. In that case, the court comments that suspicion is an expectation that the targeted individual is possibly engaged in some criminal activity. A reasonable suspicion means something more than a mere suspicion, and something less than a belief based on reasonable and probable grounds. In its decision, the court notes:

Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernable facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience.

[79] In this decision, the court notes that reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. It also notes that exculpatory, neutral or equivocal information cannot be disregarded when assessing a constellation of factors. The court states that “the totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion”.

[80] The defence argues that at the time the statements were given to Officer Micalef and Officer MacKinnon, Mr. Corner would be considered a suspect for the following reasons:

1. Mr. Corner was a person found with a dead body in his garage. This in itself raises the possibility that the occupier of the garage had some role to play;

2. Mr. Corner was known to have access to a firearm;

3. Mr. Corner was known to be involved in drug trafficking, which is a potentially violent endeavour;

4. In the six or seven minutes prior to the call, Officer Micalef had not seen anyone but Mr. Corner enter or leave the premises;

5. Officer Micalef did not hear any gunshots himself. This suggests that the shooting occurred before Mr. Corner returned to his residence and then called 911, which is an inherently suspicious thing to do. Alternatively, the shooting happened after Mr. Corner’s return to the residence, leaving Mr. Corner as the only other person in the residence at the time;

6. The defence considers the fact that Mr. Corner made the 911 call as a neutral factor, because if Mr. Corner was responsible for the shooting he had virtually no option except to call 911, because there was a body in the garage of his family residence.

[81] I do not accept that Mr. Corner could reasonably have been considered a suspect at the time of the initial attendance by the police. When Officers Micalef and MacKinnon initially attended at the scene, they had no information available to them other than a shooting had been reported at the residence. Officer Micalef subsequently learned from Mr. Corner that the body of his friend was in the garage. He had no information as to when the shooting occurred. He had no information, for example, as to whether Mr. Corner had arrived home to find the body in the garage, which would have been entirely consistent with Officer Micalef’s observations and the fact that he did not hear any shots fired. There was no information at that time to connect the previous report that Mr. Corner may have had possession of a handgun to the shooting which occurred. The fact that Mr. Corner was a drug dealer does not link him to such a violent offence. Similarly, the fact that he was physically on the premises at the time of the 911 call does not justify an inference that he was involved in the shooting. In R. v. Puddicombe, [2009] O.J. No. 6473, police responded to a 911 call which reported that the caller had found her boyfriend in bed with an ax in his head. The defence argued that as there were only three people in the apartment, the defendant must have been a suspect and should have been cautioned. The court noted that there was no evidence, other than the defendant’s presence at the scene, to suggest that she had committed an unlawful act and that police reasonably thought she was a victim and witness. The court concluded that no caution was required in these circumstances. I agree that physical presence at the time of a shooting is not sufficient, either alone or with the other information available, to support a logical inference that Mr. Corner was involved in the shooting.

[82] Further, I do not view the fact that Mr. Corner made the 911 call as a neutral factor. The defence position is premised on a review of the situation from the defendant’s perspective, on the assumption that he was responsible for the shooting in the residence of his family garage. This, of course, assumes that the police could reasonably infer that Mr. Corner was involved in the shooting, which makes the argument somewhat circular. In addition, from a police perspective, in the absence of other evidence pointing to Mr. Corner as being involved in the shooting, it would be far more logical for them to assume he was an innocent witness or victim. That, in my view, would be a significant factor and would very strongly mitigate against Mr. Corner being considered as a suspect at the time of the initial attendance by the police officers.

[83] I therefore conclude that there was no basis for police to believe that Mr. Corner was a suspect at the time of the initial police response to the 911 call. There was no requirement for the police to provide a caution to him at this time. This conclusion is supported by the evidence of the officers themselves, which I accept. While Officer Micalef testified that when he initially attended at the scene he was concerned about the possibility of an ambush, he stated that when he started to ask Mr. Corner questions he considered Mr. Corner to be a witness at that point. He was not treating him as a suspect. Similarly, Officer MacKinnon testified that once he had addressed the safety issues by doing his pat-down search of Mr. Corner, his approach to Mr. Corner was that of an eye witness.

[84] I found both Officer Micalef and Officer MacKinnon to be credible and reliable witnesses. They both responded to the scene of a shooting within a minute or two of the 911 call. They entered a situation of potential danger and acted in a reasonable and professional manner.

[85] As noted in the Singh decision, the presence or absence of a warning - even if one is indicated, is only one factor to consider on the issue of voluntariness. It can, however, as noted in the Singh decision, be an important factor. I turn now to a consideration of the other factors which must be considered on the voluntariness analysis, as outlined in the Oickle decision. These factors include threats or promises, oppression, the requirement for an operating mind and police trickery.

[86] I am satisfied that there were no inducements, threats or promises made by the officers at the scene. Their questions to Mr. Corner were focused on what information he had as to what happened and who was responsible. These are exactly the types of questions one would expect officers at the scene would ask an individual who had recently made a 911 call to report a shooting.

[87] The next issue is whether there is any evidence of oppression. As noted in Oickle, oppression has the potential to produce false confessions if the police create conditions distasteful enough. Normally, factors that can create an atmosphere of oppression, and referred to in the court in Oickle, included depriving the suspect of food, clothing, water, sleep or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time. In the present case, the defence argues that there was an oppressive atmosphere created by the police. The defence points to the fact that when the police initially attended, they had their firearms drawn and by their side. The defence also points to the fact that some of the statements obtained by Officer MacKinnon were given while Mr. Corner was in the back seat of the police cruiser. As previously noted, I have concluded that the initially cautious approach taken by police on their arrival at the scene, by having their firearms drawn and conducting the pat-down searches was reasonable, and it would have been very apparent to Mr. Corner why these measures were taken. Similarly, I have concluded that it would have been equally apparent to Mr. Corner that after these initial safety measures were taken, the interest by the police in him was as a witness and the person responsible for making the 911 call.

[88] When Mr. Corner made the 911 call to report a shooting, I infer that it would be obvious to him that the police would respond to the call and would be asking questions exactly along the lines of what occurred in this case. I draw the inference that even prior to making the 911 call, Mr. Corner had made a conscious decision to give a report to the police that three other persons had come into the garage where he was with Mr. Niazi, and that one of those individuals shot Mr. Niazi. I draw this conclusion based on the fact that Mr. Corner’s story to the police was given at the first opportunity when police asked him what had happened. The report of Officer Micalef documents his conversation with Mr. Corner as follows:

I exited the garage and asked CORNER who the victim was, he stated “Shabir Niazi”. I then asked who shot him, CORNER stated “I don’t know”. I asked a second time who shot him, CORNER stated “Look man, we were trying to sell a bunch of weed and we got robbed”. CORNER further stated that there was “three guys, middle eastern, I don’t know them”. I asked CORNER where they went, he stated “I don’t know”, I then asked if the suspects were on foot or in a vehicle, CORNER looked at me with a blank stare, he appeared to be in shock.

[89] Statements made by Mr. Corner at the police station later that evening also support this conclusion.

[90] At page 91 of the transcript of the interview held on February 19, 2014, the following exchange takes place between Detective Melnick and Mr. Corner:

MELNICK: That’s right. We’re all here for the same reason. We’re here….

CORNER: If I sat here and was like no, we didn’t have weed. If I didn’t want to tell you about the weed, I’d have to sit here and be stone-cold silent.

MELNICK: Mmm-hmm.

CORNER: And that wouldn’t look good for me.

MELNICK: Mmm-hmm.

The statement by Mr. Corner suggests that he subjectively had come to the conclusion that remaining silent would not look good for him and that he had, therefore, made a decision to speak to the police. It is also significant to note that Mr. Corner’s subjective belief was not related to any police conduct, but rather to his perception of the circumstances which pre-dated police involvement and the call to 911.

[91] A similar statement by Mr. Corner is found at page 168 to 169 of the transcript, which reads as follows:

LEISPIG: He was on your street, watching. Matt’s here and wants to tell us about things. We’ve got other people here that have already been here and told us things. They saw Matt leaving just a few minutes before all of this.

CORNER: I’ve said everything I wanted to say.

Again, this statement by Mr. Corner supports the conclusion that he made his own decision to speak to police, and his decision to speak to police was not as a result of any oppressive circumstances.

[92] The decision by Mr. Corner to call 911 also is a significant factor which supports a conclusion that Mr. Corner had made a decision to speak to the police. By calling 911, Mr. Corner was certainly aware that the police would be arriving and asking questions about what had happened.

[93] All of these factors lead me to conclude that Mr. Corner’s statements to the police on scene were part of a plan conceived by Mr. Corner prior to calling 911, and had nothing to do with the circumstances under which the statements were given to the police.

[94] As noted by Hill J. in R. v. K.G., 2012 ONSC 2372, the concept of oppression focuses on conduct of the police being improperly, overbearing or undermining the free will of a person to choose whether or not to speak with the police. There is nothing in the circumstances of this case which raises a reasonable doubt that there was any oppression which undermined the decision of Mr. Corner to choose to speak with the police.

[95] The next issue which must be addressed is whether Mr. Corner meets the operating mind requirement as outlined in Oickle. As noted in Oickle, this requirement does not imply a higher degree of awareness than knowledge of what the accused is saying, and that he is saying it to police officers who can use it to his detriment. There do not appear to be any issues which would raise a reasonable doubt on this issue. The defence has not suggested that Mr. Corner did not meet the operating mind requirement.

[96] Finally, the Oickle criteria requires that there be no other police trickery. There is no evidence of police “trickery” along the lines described by the court in Oickle. In Oickle, it is suggested that in order to be excluded on the grounds of police trickery, the conduct would have to be of a nature that “shocks the community”. In the present case, the police simply asked straightforward questions of Mr. Corner, in his capacity as a witness, as to what information he had about the circumstances of the shooting.

[97] For the above reasons, I have concluded that the Crown has met its burden of proving beyond a reasonable doubt that the statements made by Mr. Corner at the scene were voluntary.

[98] The final issue raised by the defence with respect to the statements is that they have not been properly documented by the police officers. The defence notes that Officer MacKinnon did not record the information provided by Mr. Corner in a question and answer format. In addition, Officer MacKinnon did not have a good recollection of the exact questions and answers. The defence has referred to the decision in R. v. Moore-McFarlane, 2001 ONCA 6363, [2001] O.J. No. 4646. In this decision, the Ontario Court of Appeal notes that while there is no absolute rule requiring the recording of statements, it is clear from Oickle that the inquiry into voluntariness is contextual in nature and that all relevant circumstances must be considered. The court states in Moore-McFarlane, supra:

However, the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onus may be readily satisfied by the use of audio, or better still video, recording. Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect. In such cases, it will be a matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has been provided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt.

[99] In the present case, it is apparent that there was no recording equipment available to record the information provided by Mr. Corner to Officer Micalef and Officer MacKinnon.

[100] In R. v. Jackman, [2012] O.J. No. 6380, the court considered a situation where the defendant was alleged to have made pre-arrest utterances to various officers, including a customs officer. The application judge noted that the officers did not make notes of everything that occurred when they initially encountered the defendant. However, the evidence showed that the officers made some notes for the purpose of refreshing their memory. Dawson J. commented:

I would point out that at no time did BSOs Fletcher or Sharkey attempt to conduct an investigative interview of Ms. Jackman. I have found that they did not attempt to elicit incriminating statements from her. There were no circumstances which called for audio or videotaping of their interaction with Ms. Jackman. The nature of their duties was not such that they were required to make notes of every detail of what transpired. In the circumstances that would have been practically impossible.

The court went on to find in that case, that there was no failure to prove voluntariness.

[101] The Jackman, supra, case was subsequently considered by the Court of Appeal at 2016 ONCA 121, [2016] O.J. No. 738. The Court of Appeal rejected the defence argument that because the pre-arrest exchange between the officer and the appellant was not recorded verbatim, the application judge was not in a position to determine whether the appellant’s pre-arrest utterances were voluntary. It found that a verbatim recording is not an absolute requirement to demonstrate the voluntariness of a statement. The court further stated:

It is unclear whether the appellant argued before the application judge that the prejudicial effect of the appellant’s pre-arrest utterances exceeded their probative value because of the absence of a complete record of the exchanges. In any event, a probative value versus prejudicial effect analysis of a statement made by an accused is often made in the absence of complete, written and nearly contemporaneous notes of the applicable exchange. While a statement may be excluded if its meaning is so speculative – and its probative value so tenuous – that its probative value is outweighed by its prejudicial effect, that is not the case here. Here, there was no ambiguity with respect to any of the appellant’s utterances to the BSO and the appellant had the opportunity to cross-examine the BSO on the context in which all of the utterances were made. Their probative value was not outweighed by their prejudicial effect.

[102] In the present case, neither Officer Micalef nor Officer MacKinnon were attempting to elicit incriminating statements from Mr. Corner. Rather, their purpose was to try and obtain information which could then be communicated to other officers, with a view to assisting in the investigation. There was no reason for the officers to believe that a verbatim recording was required. The notes made by the two officers on the scene were made within a reasonable time after the event, and I am satisfied that they accurately documented the statements made by Mr. Corner. The manner in which these statements have been recorded do not raise, in my mind, any doubt about the voluntariness of the statements made to the officers.

[103] The defence has also raised an issue of the probative value of the statements made by Mr. Corner versus their prejudicial value, in the event that any of the statements are considered admissible.

[104] In this regard, both the Crown and defence have agreed that if any of the statements are considered admissible, they will review these statements in the context of their probative value. In any situation where the prejudicial value is considered to outweigh its probative value, those statements will be redacted. In the event that counsel are not able to agree on what positions of the statements should be redacted, these matters will be brought back before me for further argument.

The Statement to Police at 19 Division on the Evening of February 19/20, 2014 (Part One)

[105] Mr. Corner was taken to the 19 Division police station by Officer MacKinnon on the evening of February 19, 2014. He underwent a lengthy interview, which can be conveniently divided into two parts. In the first part, Mr. Corner was interviewed by Detective Joel Melnick. The interview started at around 5:50 p.m. Prior to the commencement of the interview, Mr. Corner signed a KGB statement. The first part of the interview was completed shortly before 7:45 p.m., at which point Detective Melnick attended a briefing where police officers exchanged information they had received from various individuals. The defence argues that Mr. Corner was detained during the course of this interview. It is also suggested that there was a Charter breach because Mr. Corner was not advised of his section 10 Charter rights. In addition, the defence denies that the statement was voluntary. The defence maintains as well, that by the time this statement was taken Mr. Corner was a suspect in the shooting and ought to have been given a caution over and above the KGB caution, which was given at the commencement of the interview.

[106] The position of the Crown is that Mr. Corner was not a suspect at the time of this interview and, as such, no caution was required. According to the Crown, Mr. Corner’s statement was voluntary. The Crown further denies that Mr. Corner was detained during the course of the statement and, therefore, argues that the requirement for section 10 Charter advice was not a requirement in the circumstances.

[107] Turning first to the issue of detention, the defence position is that Mr. Corner was detained during the course of his contact with Officer Micalef and Officer MacKinnon at the scene, and that this detention continued until he was taken to the police station and placed in an interview room. For the reasons described above, I have rejected the defence position in this regard. In addition, however, the defence points to several additional factors which it suggests support a finding that Mr. Corner was detained during part one of the meeting. These include the following factors:

• Mr. Corner was put in an interview room in the non-public area of the police station. Evidence on the voir dire indicates that civilians were not allowed to be in this area without a police escort;

• Evidence that Mr. Corner’s cell phone and wallet were seized prior to being placed in the interview room;

• Mr. Corner was not advised that he could leave the police station and terminate the interview at his discretion;

• The length of the interview.

I do not place any weight on the fact that Mr. Corner was placed in an interview room in a non-public area where civilians are required to be accompanied by a police escort. The evidence on the voir dire suggests that this rule applies to all persons placed in those interview rooms. Thus, Mr. Corner’s situation was no different than any other witness, whether they were detained or not at the time of their interview. The defence made reference to the fact that some of the other witnesses were allowed to wait in the waiting room. I do not see this as being relevant. In my view, it was reasonable to take Mr. Corner directly to the witness room, given that he was identified as the one person who had witnessed the shooting. Clearly, Mr. Corner would be given priority in terms of making arrangements for his interview. The evidence on the voir dire is that there was only one soft interview room at 19 Division, which is used for the interview of victims and witnesses. The soft interview rooms are more spacious and comfortable. Other witness rooms are less user-friendly. It made sense to take Mr. Corner directly to the soft interview room, which was the preferred and most comfortable room at the division.

[108] There was evidence at the voir dire that prior to the commencement of the interview Mr. Corner’s cell phone and wallet, together with loose change, were transferred into the possession of the police. The defence maintains that the “seizure” of this property from Mr. Corner, prior to the commencement of the interview, constituted an unlawful seizure and was evidence of detention. The evidence as to how Mr. Corner’s cell phone and wallet ended up in the possession of the police is far from satisfactory. As Officer MacKinnon was the individual responsible for taking Mr. Corner to the police station and placing him into the interview room, it seems likely that Officer MacKinnon was responsible for the transfer of the property. Officer MacKinnon, however, had no specific recollection as to how this property came to be in police custody. He was cross-examined closely on this point in his evidence. He acknowledged that it was possible he took this property, but he did not specifically recall.

[109] It would appear that the defence has the burden of establishing that a seizure occurred on a balance of probabilities. Once a seizure has been proved on a balance of probabilities, the onus would shift to the Crown to establish a lawful basis for the seizure, as this would be a warrantless search. The evidence of Officer MacKinnon, that it was “possible” he took the items from Mr. Corner, does not satisfy the defence burden of establishing that a seizure occurred.

[110] There was considerable time spent in oral submissions as to whether the defence had satisfied its burden to establish that a seizure of Mr. Corner’s wallet and cell phone had occurred. I accept the defence submission that there are only three options as to how the wallet and cell phone came into the police custody. The first option is that it was seized by the police prior to the commencement of his interview. The second, is that the items were discarded and picked up by police. The third option is that Mr. Corner, while in the police station, asked the police to hold his property.

[111] The defence argued that it made no sense for Mr. Corner to transfer this property to the police voluntarily. Common sense suggests that people do not provide the entire contents of their pocket to strangers for no apparent reason. Without further evidence as to the context in which the property was transferred, however, it is difficult to draw any inferences as to why these items would have been given to the police. The Crown points to the fact that by the time Mr. Corner arrived at the police station he had established a relationship with Officer MacKinnon and, therefore, it might not be fair to characterize Officer MacKinnon as a stranger.

[112] The defence also suggests that police had an obvious interest in the contents of the cell phone. However, as pointed out by the Crown, there was no reason for the police to be interested in the contents of the cell phone as they would be fully aware of the fact that all details with respect to the 911 call, including an audio recording, would be available through the 911 system. It seems likely that the cell phone only became of interest to the police during the course of the interview with Detective Melnick, when Mr. Corner advised Detective Melnick of the fact that prior to calling 911 he had put in a call to a friend, Sean Thavarajasoorier.

[113] The defence also suggests that the lack of any known reason for Mr. Corner to transfer the property to the police is a basis for an inference that the items were seized. However, I do not believe it is appropriate to draw an inference like this when the onus is on the defendant to establish that a seizure occurred. This would be tantamount to reversing the onus which is on the defence to establish the seizure.

[114] The defence referred to the fact that the property was returned to Mr. Corner at the end of the evening. The property was in a paper bag, which Detective Harris testified was used by the police to secure evidence. In re-examination, however, she testified that the paper bags have other uses as well. They are apparently readily available to police officers in the unit. The defence also referred to the evidence of Detective Horrocks. In cross-examination Detective Horrocks responded “I know that now”, in response to a question about whether he was aware that Mr. Corner’s cell phone and wallet were seized by the police before the statement began. This evidence carries some weight but there is no evidence as to where the information came from, and there is no way to verify its accuracy. Having considered all of the evidence on this issue, I have concluded that the defence has failed to establish on a balance of probabilities that a seizure occurred. Giving the defendant the benefit of the doubt that a seizure did occur, the Crown acknowledges that there was no lawful authority for the police to seize the property from Mr. Corner. However, the Crown notes that the defence is not seeking to have that evidence excluded. No remedy is sought with respect to the cell phone. The defence relies on the seizure as evidence that Mr. Corner was detained. They point to the fact that Mr. Corner would not be able to leave without getting his personal property back. This is, of course, correct. However, at no point during the interview did Mr. Corner ask to leave, or ask to have his property returned.

[115] As noted by the defence, Mr. Corner was not advised that he could leave the police station and terminate the interview at his discretion. In retrospect, it would have been helpful if this advice had been provided to Mr. Corner and documented. However, this would not appear to be a requirement under our law. This point was emphasized by the Supreme Court in Grant, when they stated at paragraph 38:

In the context of investigating an accident or a crime, the police, unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence and, consequently, is at risk of self-incrimination. This does not preclude the police from continuing to question the person in the pursuit of their investigation. Section 9 of the Charter does not require that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Nor does section 10 require that the police advise everyone at the outset of any encounter that they have no obligation to speak to them and are entitled to legal counsel.

[116] With respect to the length of the interview, the first portion of the interview lasted from 5:50 p.m. until just shortly before 7:45 p.m. This means that the first part of the interview lasted approximately two hours. I do not view the length of that interview to be indicative of a detention.

[117] I have concluded that Mr. Corner was not detained during the course of part one of the interview with Detective Melnick. The facts that I have relied upon in reaching this conclusion are as follows:

• In his evidence, O0fficer MacKinnon stated that prior to transferring Mr. Corner to 19 Division he spoke with him, and Mr. Corner agreed to come with him to the station to give a statement to the police. Officer MacKinnon also testified that while he was in the cruiser with Mr. Corner he appeared upset, but was compliant, and appeared eager to provide information to him. I accept this evidence, which is consistent with the statements made by Mr. Corner during the course of the interview with Detective Melnick, and which have been previously referred to;

• Prior to commencing the formal interview, Mr. Corner was asked to sign the KGB caution. He was asked whether he wanted to read the caution, and he responded that he did in fact want to read it to himself. Having done so, Mr. Corner did not have any questions about the statement, or indicate any reluctance to proceeding with the interview;

• Also prior to the interview, Mr. Corner was asked if he wanted some food from McDonalds or a sub sandwich. Rather than accept one of the options offered to him, Mr. Corner wanted to have some Popeyes Chicken instead. Mr. Corner appeared comfortable giving Detective Melnick instructions as to what he wanted to eat. He appeared to be comfortable with the process and quite prepared to intervene if he had any issues. I am left with the impression that Mr. Corner did not feel any constraints, and seemed entirely cooperative up until the end of part one of the interview with Detective Melnick;

• There is no evidence of any physical restraint shown on the video. If there were any detention of Mr. Corner, it would have to have been on a psychological basis;

[118] I have considered the factors set out in the R v. Grant decision supra with respect to whether there was a psychological detention under the headings referred to in that decision:

(a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual; whether the police were providing general assistance; maintaining general order; making general enquires regarding a particular occurrence; or, singling out the individual for focussed investigation.

• In the present case Mr. Corner was asked and agreed to come to the police station to give a statement and he agreed to do so. He would be well aware of the fact that the police were conducting an investigation into the shooting and his information was critical as he was the only known witness to the shooting. There is nothing in the circumstances of the statement which would suggest a reasonable person in a position of Mr. Corner would feel that he was being detained. The evidence of the police was that upon his arrival at the police station Mr. Corner was taken through the front entrance and into the soft interview room. If Mr. Corner had been arrested he would have gone through a back sally port entrance. And if he had been considered a suspect he would not have been taken to the soft interview room. The defence correctly points out that Mr. Corner might not have been aware of the significance of these factors and therefore questions whether they have any relevance on the issue of Mr. Corner’s perception of his detention. While there is merit in the defence position, I do find there is some relevance as it supports the police evidence that Mr. Corner was being treated as a witness and not a suspect and it is reasonable to infer that this would have been reflected in their conduct towards him.

(b) The nature of the police conduct, including the nature of the language used, the use of physical contact, the place where the interaction occurred, the presence of others; and the duration of the encounter.

• The evidence of the police is that they treated Mr. Corner as a witness. There is no evidence of any physical restraint and this statement was taken in the soft interview room which is reserved for interviews with witnesses or victims. There was no language used by the police indicative of a detention.

(c) The particular characteristic or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[119] Mr. Corner was only 22 years old at the time of the shooting. Nevertheless he had considerable experience with the criminal justice system. Since age 18 he had been subject to arrest on seven other occasions. As a result I would not consider him unsophisticated in dealing with police. He was someone who was quite familiar with the criminal justice system.

[120] In summary, the evidence would suggest that Mr. Corner would reasonably understand he was being asked to give information to the police about a shooting he had witnessed. There is no evidence to suggest that Mr. Corner felt he was being singled out for a focused investigation at this stage. Further, there was no physical contact. While the interview took place in a police station, Mr. Corner had previously agreed to come to the police station to give a statement. Finally, Mr. Corner was someone who was familiar with the criminal justice system because of his past history of arrests. As such, there is no reason to believe that he would not be sensitive to the activities of the police, how he was being treated and raising any concerns in the context of the tape recorded interview.

[121] For the above reasons I have concluded that Mr. Corner was not psychologically detained nor was he physically detained during the course of part one of the interview. It therefore follows that I have concluded that there was no breach of his section 9 and 10 Charter rights.

[122] I turn now to the question of whether the Crown has established beyond a reasonable doubt that Mr. Corner’s statement, in part one of the interview with Detective Melnick, was voluntary. The first issue to be addressed in this regard is whether Mr. Corner was being interviewed in the capacity of a witness or a suspect. If he was being treated as a suspect, it is apparent that no caution was given to him by Detective Melnick during this portion of the interview.

[123] Detective Melnick was not a member of the homicide squad but was, instead, a detective responsible for investigating crimes against persons in the community. He initially attended at the scene of the shooting, and was listening to some of the updates which were coming out over the radio. This included a description of three male suspects who were reported to have been responsible for the shooting. At the time of his interview with Mr. Corner, Detective Melnick believed that Mr. Corner was a witness to the shooting. He was not considered a suspect. He noted that a KGB caution is not used for accused persons or suspects. Mr. Corner had been placed in the “soft” interview room. It is not used to interview suspects, and the door to the room does not lock. The police station has separate rooms for interviewing suspects and accused persons. These rooms have fixed furniture and are not as comfortable.

[124] Detective Melnick stated that his objective in the interview with Mr. Corner was to obtain as much information as possible from him as an eyewitness of the shooting.

[125] Prior to commencing the interview, Detective Melnick was aware that Mr. Corner had previously reported that three unknown persons came into the garage where he and Mr. Niazi were located. One of the three men shot Mr. Niazi. He understood from the information provided, that Mr. Corner and Mr. Niazi had been victims of a home invasion and an apparent drug theft. Detective Melnick was aware of previous reports that Mr. Corner had access to a firearm. He was also aware that no firearm had been found on Mr. Corner following the police arrival in response to the 911 call. He also knew that Mr. Corner had been under surveillance in relation to possible drug activity.

[126] Detective Melnick was not told about Officer Micalef’s observations at the scene prior to the officer briefing that was held later. He did not know when Officer Micalef arrived at the residence, was not told that Officer Micalef had not seen anyone fleeing from the scene, nor was he told that Officer Micalef had not heard any shots prior to the 911 call. Similarly, Detective Melnick was not told about any footprints which had been seen in the backyard of the residence.

[127] Detective Melnick recalled that he thought he had spoken to some women in the church parking lot near the residence when he initially visited the scene. He stated that he had a very brief conversation with them. He did not recall being told that they saw anything. However, he asked them to go to the police station to give an interview. During Part One of the interview, Detective Melnick confirmed that he did not receive any reports as to what was going on outside the interview room in terms of the police investigation.

[128] It is apparent from Detective Melnick’s evidence, that he did not have all of the available information that had been collected by other officers at the time of his interview with Mr. Corner. This is understandable in the sense that the interview was being conducted within several hours of the actual shooting, and the investigation itself was a dynamic and fast-moving process. In R. v. Barges, 2005 ONSC 47766, [2005] O.J. No. 5595, Glithero J. dealt with a police officer who had just been seconded to the investigation prior to the interview in question in that case. On the issue of whether a caution ought to have been given, he states that “the information available to those controlling the investigation must be imputed to the officer in terms of assessing whether or not a caution ought to have been given”. That conclusion seems less compelling in a case where the shooting has just occurred and a formal structure to organizing information has not yet been established. Nevertheless, for the purposes of my analysis I am prepared to include the additional information which Detective Melnick had not been apprised of prior to the commencement of the interview. That information includes the observations of Officer Micalef and the information obtained by Officer MacKinnon. The dispatch records also indicate that an officer had identified two witnesses in a park across the street from the residence, and they reported that they saw Matthew Barras come by and tuck something into his pants. The dispatch transcripts also refer to Matthew Barras as a possible suspect.

[129] In my opinion, the information collected prior to the start of Mr. Corner’s interview with Detective Melnick does not rise to the level that he would be properly considered a suspect. As noted previously, Mr. Corner’s explanation at the scene provided a reasonable explanation for the shooting. The fact that Mr. Corner was responsible for making the 911 call lends some significant credibility to his version of events. While there had been reports that Mr. Corner had previously had access to a firearm, police had done a search of both Mr. Corner and the garage and had not located any firearm associated with the shooting. The absence of a firearm would be consistent with Mr. Corner’s assertion that the man who shot the victim left with the gun.

[130] Officer Micalef had not seen anyone flee from the property prior to being advised of the 911 call. However, this evidence was not necessarily inconsistent with Mr. Corner’s version of events as it was possible based on the information available that the three intruders could have left through the backyard. Detective Horrocks, in his evidence, testified that on the first night following the shooting the police had no information about the number of footprints found in the backyard or their destination. Thus, the police could not have ruled out the possibility that the three intruders left through the backyard.

[131] Officer Micalef observed, following the commencement of his surveillance, that Mr. Corner returned to his residence. He did not hear any gunshots. These observations would not necessarily be inconsistent with Mr. Corner’s story. At that point the timing for the shooting could not be reliably established, nor could Officer Micalef be certain that he would have heard the shots given his location north of the residence and the possibility that the garage door might have muffled the sound of the shots. Taking into account all of these uncertainties there was no reasonable basis, in my view, to consider Mr. Corner as a suspect. As noted by the Supreme Court in the Chehil, supra, decision, there is a requirement for objective and ascertainable facts as the basis for reasonable suspicion. Those objective facts must rise to the level of reasonable suspicion, such that a reasonable person standing in the shoes of the police officer would have held a reasonable suspicion of criminal activity. The constellation of facts must be based in the evidence tied to the individual, and capable of supporting a logical inference of criminal behaviour. The facts known to police do not rise to that level, in my view. At best, they would raise some issues that might require further investigation. However, as also noted in the Chehil decision, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors, or rule out possibly innocent explanations.

[132] I therefore conclude that Detective Melnick’s belief that he was dealing with Mr. Corner as a witness, and not as a suspect, is well supported by an objective analysis of the information available at the commencement of the interview. There was, therefore, no obligation to issue a caution to Mr. Corner at the start of the interview.

[133] This leads to a consideration of whether, based on the other available evidence, the Crown has met its burden of establishing beyond a reasonable doubt that Part One of the statement to Detective Melnick was voluntary.

[134] I have concluded that the Crown has met its burden in this regard. The factors I have relied upon in reaching this conclusion are as follows:

• There is no evidence of any threats, promises or inducements during the course of part one of the Melnick interview. The questions were generally open-ended. Detective Melnick asked questions designed to have Mr. Corner describe all of his activities during the day. He asked detailed questions as to who was with Mr. Corner in various parts of the day, and also asked questions designed to elicit any information as to who might have tipped off the intruders to their presence in the garage that day with drugs. The tone of the interview was cooperative and non-confrontational;

• Similarly, there is no evidence of any oppression during the course of the interview. As noted earlier, the tone of the interview was cooperative and not aggressive. The questioning lasted for about two hours, which in my view is not excessive.

[135] There is no doubt that Mr. Corner had the necessary operating mind, understood what he was saying and that he was saying it to police officers who could use it to his detriment. Finally, there is no evidence of any police trickery during this portion of the interview.

[136] In these circumstances, I conclude that the Crown has established beyond a reasonable doubt that the interview of Mr. Corner in Part One of the statements was voluntary up until just before Detective Melnick prepares to leave the interview room.

Statement Given to Detective Melnick on February 19, 2014 (Part Two)

[137] There were a number of significant events which occurred at the end of Part One of the statement and the commencement of Part Two of the statement. At the end of Part One of the statement, Detective Melnick appears to be wrapping up the interview and is asking Mr. Corner to think about whether there is anything else he can recall which he needs to tell police about. The exchange went as follows:

MELNICK: What I want you to do though is I’d – I’d really like you to just sit here and kind of focus on what happened today. And say, you know, is there something I forgot to tell uh, Detective Melnick uh, was there – was there something in the last couple of days? Hey, wait a minute, you know what, that was an unusual guy that called.

CORNER: Is there someone – is there somewhere I could walk around while I think like that because like I don’t….

MELNICK: I can’t – I can’t really let you leave.

CORNER: I can’t use the bathroom?

MELNICK: Yeah, you can use the washroom.

CORNER: I’ve really got to piss.

MELNICK: Okay, well, come with me but uh, one…

CORNER: All right.

MELNICK: …one condition. I – I don’t want you washing your hands.

[138] There are a number of inferences which can be drawn from the evidence noted above. First, Mr. Corner appears quite willing to continue the interview with Detective Melnick and is looking for a place where he could walk around while he thinks. Second, the response by Detective Melnick suggests that he is not able to let him leave. In his evidence, Detective Melnick testified that his concern at that point was that it was not possible to let Mr. Corner wander around the police station by himself. In cross-examination, he agreed that when Mr. Corner asked if he could use the bathroom he appeared to be asking permission from him. Detective Melnick agreed to this request, but imposed a condition that he not wash his hands because of an anticipated gunshot residue test. Detective Melnick agreed that his choice of words was poor. He had meant to ask Mr. Corner not to wash his hands. He also agreed that witnesses are allowed to leave and he could not stop Mr. Corner from leaving the station if he chose to do so.

[139] The Crown argues that when taken in their proper context, what Detective Melnick is telling Mr. Corner is that he cannot let him wander around the police station. Mr. Corner is asking for some direction as to where he can go in a police station to walk around, and is not asking to leave the police station. Detective Melnick’s comment, “I can’t really let you leave”, needs to be taken in its proper context and does not, therefore, constitute a detention.

[140] While I accept Detective Melnick’s evidence that he was not intending through his statement to detain Mr. Corner, the test I must apply is not what Detective Melnick intended. Instead, the test as set out in the Grant case is, “whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice”. In my view, the words used by Detective Melnick are unequivocal, and the reasonable person in Mr. Corner’s position would conclude his right to leave the police station had ended. This appears to be the conclusion which was reached by Mr. Corner, because immediately following that statement by Mr. Melnick he asks for permission to use the washroom. This permission is granted but on condition that he not wash his hands. All of these circumstances lead me to conclude that at this point Mr. Corner is now detained. There is no subsequent instruction to Mr. Corner that he is free to leave. Thus, I conclude that his detention continued until the end of the interview when Mr. Corner was taken by the police to a hostel.

[141] Mr. Corner was not given a caution upon his detention, nor was he given advice about his section 10 Charter rights. I therefore conclude that at this point there was a breach of Mr. Corner’s section 9 and section 10 Charter rights. I also conclude he should have been given a caution at this point.

[142] After Detective Melnick takes Mr. Corner to the washroom, he subsequently introduces Mr. Corner to Detective Harris who conducts the gunshot residue test. At this point, Detective Melnick attends a meeting with the other investigating officers. The purpose of the meeting was to exchange information which had been obtained by other officers in connection with their investigation of the shooting. During the course of this meeting, Detective Melnick is given an update on the information obtained from other witnesses who were being interviewed. This information was very significant as it tended to cast serious doubt on the version of events described by Mr. Corner. For example, Mr. Corner had told Detective Melnick that Sean Thavarajasoorier had set up a drug transaction. At the time of the shooting, Mr. Corner stated that he and Mr. Niazi were in the garage waiting for the clients to attend and complete the drug transaction. In a statement to the police, however, Mr. Thavarajasoorier denied setting up or being involved in any drug transaction.

[143] Further, information was conveyed at the meeting from two individuals, Ken Widdifield and Paul Howe. These two individuals had been in the park across the road from Mr. Corner’s residence where they had been drinking and smoking drugs. In their interview with police they stated that they had heard a series of gunshots. At some point after that, they saw Mr. Corner and Matthew Barras moving about outside Mr. Corner’s house. Matthew Barras left the residence and walked passed them, appearing to adjust an item in the front of his pants as he walked. None of the witnesses reported seeing three men flee the scene of the shooting.

[144] The Crown argued that while Detective Melnick was aware that there were some inconsistencies between Mr. Corner’s account and that of Ken Widdifield, Paul Howe and Sean Thavarajasoorier, there is no additional evidence which implicates Mr. Corner in the death of Mr. Niazi. At its highest, it is suggested that Detective Melnick knew that Mr. Corner appears to have withheld information that Matthew Barras might have been present shortly after the shooting. In the information he gave to Detective Melnick, Mr. Corner told him that Mr. Barras left his residence earlier in the afternoon.

[145] The Crown also suggests that information provided by the other individuals was suspect. For example, Ken Widdifield and Paul Howe had both been drinking and consuming drugs. Further, Sean Thavarajasoorier had a strong motive not to disclose any involvement in setting up a drug transaction which might have led to the shooting.

[146] While at this point I agree that it was premature to draw any firm conclusions about Mr. Corner’s role in the shooting, I have concluded that the information certainly casts serious doubt on the information he provided to the police. None of the witnesses had seen three men leave the residence. This information was consistent with the known information from Officer Micalef, who was conducting surveillance on the residence. The information from Paul Howe and Ken Widdifield suggested that Mr. Corner and Mr. Barras both walked down the driveway after the shooting and were seen by them. The observation that Mr. Barras was seen tucking something into the front of his pants reasonably raised an issue as to whether Mr. Barras might have left with the gun involved in the shooting. The fact that he and Mr. Corner were seen together is also significant, and is inconsistent with the information provided by Mr. Corner.

[147] All of these factors lead me to conclude that at the conclusion of the meeting, taking into account all of the information available to the police at that time, that there was a reasonable basis to doubt the information provided by Mr. Corner including his assertion that three unknown men had come into the garage and were responsible for the shooting. Given that Mr. Corner was the only other person known to be in the garage at the time of the shooting, and in light of the totality of the circumstances, there was reasonable cause to suspect that Mr. Corner was involved in the shooting. He, therefore, should have been considered a suspect at this point.

[148] Detective Melnick gave evidence that he continued to believe that Mr. Corner was only a witness, and that he continued to believe his report of three men having come into the garage as part of a home invasion, which lead to the shooting of Mr. Niazi. However, the subsequent questioning by Detective Melnick would suggest that he had some serious doubts about that version of events. When Detective Melnick went back to continue the interview he commented to Mr. Corner, “Things have changed. And um, we spoke to a lot of people”. Later he commented:

I’m just saying – telling you that you haven’t been telling me the truth. Now, remember when you – you had the – the KGB statement there taken that if you lie to the police or you mislead the police, you could find yourself facing charges?

[149] It is apparent that the tone of the interview changed dramatically from the earlier part of the interview. Detective Melnick was much more aggressive and confrontational with Mr. Corner. Detective Melnick was later joined by Detective Leipsig in the interview, who was also very aggressive and confrontational in his approach to Mr. Corner.

[150] Early on, after resuming the interview, Detective Melnick comments, “That’s not what happened. Okay? We’ve got the two guys in the park, no three guys running from the house”. Later, Detective Leipsig tells Mr. Corner:

That’s why – listen to me. That’s why he’s watching. He didn’t see those three brown-skinned guys. And while you’ve been in here talking to my partner, we’ve got all kinds of people coming into the station. And officers are speaking to all kinds of people. And now, your story ain’t cutting it. You’re missing some important pieces here.

[151] In this part of the interview, the possibility that Mr. Corner was responsible for the shooting is clearly raised by the police officers. At page 160 of the transcript, the following exchange takes place with Mr. Corner:

LEIPSIG: Now, I know my partner here told you that this was being recorded and all that other stuff. Did you shoot him?

CORNER: No, I didn’t. I didn’t shoot him.

[152] Detective Melnick was questioned why he did not feel the information from the other witnesses, which was discussed at the officer briefing, implicated Mr. Corner in the shooting. He testified there was concern that Mr. Corner’s information did not match up with the other witnesses. They felt that Mr. Corner might be trying to protect some other person like Matthew Barras or Sean Thavarajasoorier. He felt that Mr. Corner’s story made some sense, however, and he had no reason to believe he would harm his friend. The aggressive questioning, according to Detective Melnick was a stimulation technique, and was designed to get Mr. Corner’s attention and emphasize that he needed to tell police the truth.

[153] The test to determine whether Mr. Corner was a suspect is, however, an objective one. Viewed objectively, for the reasons noted above I have concluded that there were reasonable grounds to suspect that Mr. Corner was involved in the shooting. Accordingly, he should have been provided with a caution which advised him of his position within the investigation, and advised of the fact that he was not obliged to say anything but whatever he did say might be given in evidence.

[154] On the resumption of the second part of the interview, Mr. Corner was given some limited rights advice. Initially, he was told by Detective Melnick, at page 141:

MELNICK: So, as a result, I want to make you aware of a couple of things. Okay? You don’t have to talk to me if you don’t want to talk to me.

Later, Detective Melnick adds:

MELNICK: What I want to make you aware of, everything we say in this room is admissible in court.

At page 143 of the transcript, Detective Melnick tells Mr. Corner:

MELNICK: Okay. So, if you’d like to speak a lawyer, I’ll put you in contact with a lawyer. And if you don’t have a lawyer, I can contact duty counsel. And you can have the opportunity to speak to duty counsel.

CORNER: Why do I need to speak to them for?

MELNICK: Because we’ve spoken to a lot of witnesses.

CORNER: Okay.

MELNICK: Okay? You haven’t been telling me the truth.

CORNER: I told you everything I know.

MELNICK: That’s not what I said. I said you haven’t been telling me the truth. And that’s why I’m cautioning you.

CORNER: I told you the truth.

MELNICK: I’m making you aware of your rights. Do you want to call a lawyer?

CORNER: Well, why would I need to call one?

MELNICK: Because – because I don’t believe anything that you’ve told me.

[155] The information provided to Mr. Corner was deficient in a number of respects. First, with respect to the caution, Mr. Corner was not specifically advised of his jeopardy as a suspect in the investigation. With respect to his section 10 right to counsel, there was a significant delay in advising Mr. Corner of his right to counsel from the time he was detained at the end of Part 1 of the interview. Finally, the right to counsel advice was clearly premised on a possible obstruction charge for not telling the truth in the interview, as opposed to his potential jeopardy as a suspect in a murder investigation.

[156] In addition, there appeared to be a number of additional Charter breaches which occurred after Mr. Corner was detained at the end of the first part of the interview and during part two of the interview. The first breach occurred when Detective Harris conducted the gunshot residue test after Detective Melnick left to go to the briefing meeting. In her evidence she confirmed that she conducted the test based on a misunderstanding that Mr. Corner had been arrested, and that the GSR test was conducted as being incidental to that arrest. This would constitute a breach of Mr. Corner’s section 8 Charter rights. In the present case, the defendant is not seeking an order excluding the evidence under section 24(2). However, the defence is asking the court to consider this violation when conducting its analysis under section 24(2) of the Charter.

[157] Similarly, there were other section 8 Charter violations involving seizures of the defendant’s property at the end of the interview. Detective Melnick brought the defendant’s cell phone into the interview room near the end of the interview. He advised Mr. Corner that he was seizing the cell phone. Similarly, Mr. Corner’s clothes were seized at the completion of the interview. Detective Melnick acknowledged on cross-examination that he took the cell phone without Mr. Corner’s informed consent.

[158] In light of my findings that Mr. Corner was detained during part two of the interview, and that the actions of the police constituted breaches of section 9 and section 10 of Mr. Corner’s Charter rights, I turn now to a consideration of whether the evidence should be admitted under section 24(2) of the Charter. The Crown suggests that if Mr. Corner was not considered to be a suspect during the course of the interview, the advice given to Mr. Corner might arguably be close to adequate in the circumstances. However, in light of my finding that Mr. Corner was a suspect, the informational deficits in the information provided to Mr. Corner are significant.

[159] I have considered whether the statements made by Mr. Corner, following his detention at the end of part one of the statement, should be excluded under section 24(2) of the Charter. As previously noted, while there is no absolute rule of exclusion of Charter infringing statements, as a matter of practice courts have tended to exclude statements obtained in breach of the Charter on the ground that admission on balance would bring the administration of justice into disrepute.

[160] On the issue of the seriousness of the Charter infringing state conduct, I consider the Charter violations in this case to be serious. While I accept that Detective Melnick’s intention was not to create a detention at the end of part one of the interview, it is significant to note that when he returned to the interview room following his briefing and provided some limited section 10 rights advice to Mr. Corner, he tied this advice only to a potential obstruction charge as opposed to providing information to Mr. Corner which would properly reflect his potential jeopardy at the time. In addition, this was not an isolated Charter breach. There were several Charter breaches which occurred during the course of part two of the interview, as referred to earlier. This is reflective of a pattern of abuse during part two of the interview. For these reasons, I conclude that the Charter infringing conduct was serious and would favour exclusion of the evidence.

[161] With respect to the impact of the Charter breach on the Charter protected interest of the accused, I have concluded that the impact was also serious. Mr. Corner’s response to the cautions, which were given by Detective Melnick, was that he did not wish to make any further statements. This is reflected at page 146 of the transcript where the following exchange takes place:

MELNICK: So, at this point, you don’t want to talk to a lawyer?

CORNER: I don’t even want to talk to you anymore.

MELNICK: You don’t want to talk to me anymore?

CORNER: Like I just want to finish this and go home, really. Because like I told you so much, I could probably get myself killed. That’s all I know. I don’t want to tell you any more anyways cuz like the whole time I was in here, I was thinking cuz I told you – I don’t know if I mentioned the name, Smalls, to you, but I mentioned there was some – I don’t – that – that there, just saying a name cuz the guys who did this could – if they hear in the news oh, this guy – this guy cooperated, how do I know they’re not going to come back and kill me? How do I know this? I could get myself killed, sisters, brother killed in the crossfire. They already came when they were home.

[162] It therefore cannot be confidently said that Mr. Corner would have continued with the interview, notwithstanding the Charter breach. As noted in the Grant decision, absent such circumstances the analysis under this line of enquiry supports the exclusion of the statements following his detention.

[163] With respect to society’s interest in adjudication on the merits, I accept that there is a strong interest in having a case tried on its merits. I do not believe this is a case where Mr. Corner made statements, in part two of the interview, that were made more on a misconceived idea of how to get out of his predicament than on the truth. The statements he made in part two of the interview are consistent with what he had said earlier, and I believe they were part of a conscious decision made by Mr. Corner, prior to the 911 call, to give this explanation to the police. However, the information provided by Mr. Corner in part two of his statement does highlight a number of inconsistencies in his evidence, and an admission by him that he “lied” on a number of points earlier in his statement. I do not believe exclusion of the statement will effectively gut the prosecution’s case and this is consistent with the Crown submissions in their oral argument. Taking into account the heightened concern for proper police conduct in obtaining statements from suspects and the centrality of the protected interests affected, I have concluded that permitting Mr. Corner’s statement after page 127 of the transcript would bring the administration of justice into disrepute and it is, therefore, excluded under section 24(2) of the Charter.

[164] Included in part two of the statement is a discussion between Mr. Corner and his parents. That discussion took place in the absence of police, but was both audio and video recorded. Because that interview took place in circumstances that flowed directly from the section 9 and 10 Charter breaches, and because the same section 24(2) criteria would apply, that portion of the statement is included in my previous analysis and is subject to the same order of exclusion.

[165] I have also concluded that there is a reasonable doubt about the voluntariness of Mr. Corner’s statement in Part Two of his interview with Detective Melnick. As noted in the R. v. Singh, supra decision the notion of voluntariness involves providing a suspect with a caution. It is noted in that decision that the presence or absence of a warning will be a factor and, in many cases, an important one. In the present case Mr. Corner was told early on in Part Two of the interview that he did not have to speak with Detective Melnick if he didn’t want to and that anything he said in the interview would be admissible in court. However, he was not advised that he was a suspect in the murder of Mr Niazi. In my view this was a critical omission as it effectively deprived Mr. Corner of the information that he was considered a suspect in the murder.

[166] As referred to earlier in these reasons Mr. Corner told Detective Melnick that he didn’t want to speak to him anymore. Had Mr. Corner been provided with information about his true jeopardy there is a reasonable doubt in my view as to whether he would have continued on with the interview. In all the circumstances, therefore, I am not satisfied beyond a reasonable doubt that the statements made by Mr. Corner in Part Two of the interview were voluntary.

The Arrest of Mr. Corner on March 1, 2014

[167] Mr. Corner was arrested by Detective Melnick on March 1, 2014 at the direction of Detective Horrocks. Earlier in the day, Detective Melnick received a telephone call from Mr. Corner asking for the return of his cell phone. Detective Melnick told him that he would catch up with him at around 1:00 p.m. that day to return the cell phone. Mr. Corner told Detective Melnick that he would follow up with him at around 11:00 a.m. to make arrangements to get the cell phone back. Detective Melnick did not hear back at 11:00 a.m. from Mr. Corner. Around the noon hour he received instructions to arrest Mr. Corner. Surveillance had identified that he was located at an address in Ajax. Surveillance had also identified that Mr. Corner had been seen earlier purchasing liquor. That was apparently the reason why police wished to proceed with the arrest fairly quickly. The police wanted to proceed with an interview after the arrest.

[168] Detective Melnick went to the address with a number of other officers. Surveillance had identified that Mr. Corner had entered the residence at the back. Detective Melnick, together with another officer, went to the back of the residence where there was a sliding door. He knocked on the glass door. He was then summonsed by an officer at the front of the house. Detective Melnick went to the front of the house where he saw Mr. Corner standing outside. He then proceeded to arrest Mr. Corner outside the house.

[169] Subsequently, Mr. Corner was given a caution and rights advice. After providing rights advice, the following exchange took place between Detective Melnick and Mr. Corner:

MELNICK: I’ve got about uh seven or eight minutes to one. Keenan, do you have a lawyer in mind that you want to call?

CORNER: I don’t even – I don’t even know one that would be good for something like this type of thing.

MELNICK: Keenan, Keenan, you must have been expecting us.

CORNER: No, I didn’t, actually.

[170] The defence position is that because the police did not have a Feeney warrant when they attended at the home of Matt Lawrence in Ajax, they inappropriately used a trick to lure Mr. Corner out of the house where they arrested him. The defence also argues that the police presence on the property exceeded the ambit of the implied invitation to knock. The defence therefore concludes, that the arrest procedure employed by the police showed disregard for the defendant’s rights under section 9 of the Charter.

[171] Further, the defence argues that when Detective Melnick spoke to Mr. Corner after advising of his right to counsel, that he was breaching Mr. Corner’s right to silence by attempting to elicit information from him. The defendant does not seek an exclusion remedy pursuant to section 24(2) in connection with the statements made by Mr. Corner during the arrest process. However, the defence asks the court to consider the alleged disregard for the defendant’s Charter rights in making any determination about the admissibility of Mr. Corner’s subsequent statement.

[172] I have concluded that there was no breach of Mr. Corner’s Charter rights in connection with his arrest. In R. v. Feeney, 1997 SCC 342, [1997] SCJ No. 49, the court ruled that subject to certain exceptions which would not apply in this case, a warrant is required to enter a dwelling house for the purpose of an arrest. In the present case Mr. Corner was arrested outside the home, and the evidence of Detective Melnick was that he had no plan to go inside the home.

[173] The police decision to go to the back patio door appears to be reasonable, given the information that this was the entrance which had been used by Mr. Corner to enter the house. In any event, the police conduct in going to the rear of the house would not be a Charter breach affecting Mr. Corner’s rights, but that of the occupier.

[174] Further, the fact that Mr. Corner likely came out of the house in anticipation that Detective Melnick had come to return his cell phone does not render the arrest unlawful. I accept the reasoning of Campbell J. in R. v. Martin, [2000] O.J. No. 5736. In that case, it was asserted that police lured a person out of a house on the “pretext that there was still some wiggle room for Enzo so far as the intention to arrest was concerned”. The court found that the principles set out in Feeney, supra, only deal with arrests inside dwelling houses, and stated:

If the Supreme Court of Canada in Feeney or Parliament in section 529 wanted to restrict arrests on private property near dwelling houses the Supreme Court of Canada would have said so and Parliament would have said so.

[175] The court further commented that even if a jury were to find that it was the police officers fixed and subtle intention from the beginning to arrest the individual at his home, and even if he concealed that intention when he invited the individual outside, that does not in law produce any requirement for a Feeney warrant which only applies to arrests inside a dwelling house, as does section 529 of the Criminal Code.

[176] In R. v. Prosper, 1994 SCC 65, [1994] S.C.J. No. 72, the Supreme Court commented on the obligations of police with respect to eliciting evidence from an accused following his arrest. The court stated:

Once a detainee has indicated a desire to exercise his or her right to counsel, the state is required to provide him or her with a reasonable opportunity in which to do so. In addition, state agents must refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel. As the majority indicated in R. v. Ross, 1989 SCC 134, [1989] 1 S.C.R. 3, at p. 12, once a detainee asserts his or her right to counsel, the police cannot in any way compel him or her to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a reasonable opportunity to exercise that right. In other words, the police are obliged to “hold off” from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel.

[177] In the present case, I do not interpret Detective Melnick’s comment to be an attempt to elicit evidence about his possible involvement in the shooting, which was the subject of his arrest. His comment was in the form of a statement, not a question. Further, his comment appeared to be a response to Mr. Corner’s comment that he did not have a lawyer in mind that he wanted to call. While it certainly would have been preferable for Detective Melnick not to have responded to Mr. Corner’s comment, I do not find a Charter breach in relation to this comment.

Statement to Detective Horrocks After Mr. Corner’s Arrest

[178] After Mr. Corner was brought to the police station, he was interviewed by Detective Horrocks. The interview initially took place in an interview room at the police station. Subsequently, Mr. Corner was taken to the park area where the murder weapon was found. In place of the murder weapon a fake gun had been placed where the murder weapon had been found, and police pretended to discover the murder weapon in Mr. Corner’s presence. Mr. Corner was then taken back to the police station where he was interviewed further by Detective Horrocks. Through the interview by Detective Horrocks, Mr. Corner continued to deny that he had any responsibility for the shooting. However, there were some inconsistencies in his evidence and further embellishments on his story that three men had entered the garage and one of them had shot Mr. Niazi. In addition, during the course of the interview Mr. Corner admitted possession of a sweater, which police advised was found in a garbage can in the park where the murder weapon was found.

[179] The defence does not allege any Charter breaches in connection with the statement given to Mr. Corner. They agree that he was properly cautioned and given rights advice. Mr. Corner had spoken with his lawyer twice before the commencement of the interview. The issues raised by the defence, in connection with this interview, are whether the Crown has proved beyond a reasonable doubt that the statement was voluntary and, if so, whether the statement was sufficiently connected to the earlier statement with Detective Melnick that it should be excluded. I will consider first, the issue of whether the statement was voluntary.

[180] The defence calls into question whether Mr. Corner had an operating mind, and calls into question his level of sobriety and ability to properly understand the information being communicated to him. The defence also takes the position that the circumstances of the interview were oppressive, and that the coercive interview techniques used during the interview raise a reasonable doubt about the voluntariness of the statement. The defence also suggests that there were a number of inducements or threats by Detective Horrocks during the course of the interview.

[181] I have concluded that Mr. Corner did have the necessary operating mind during the course of the interview. At page 16 of the transcript he is asked by Detective Horrocks whether he had anything to drink. Mr. Corner responded that he had consumed four or five shots before his arrest, as well as about a gram of marijuana. The interview started at 5:39 p.m., and Mr. Corner had been arrested some time shortly before 1:00 p.m. In the circumstances, there is no reason to believe that he was deprived of an operating mind by virtue of his consumption of alcohol or drugs. This conclusion is supported by a comment by Mr. Corner, on page 16 of the transcript, where he comments that he really did not feel too drunk when police picked him up. He does, on page 17 of the transcript, however, respond to a question as to whether he felt emotionally strong enough to speak to Detective Horrocks by stating, “to be honest I forget some of the things you’ve asked me”.

[182] It is apparent, however, as the interview progresses that Mr. Corner understands the questions which are posed, and the answers which he gives are responsive to the question asked. I am satisfied that Mr. Corner understood what he was saying to Detective Horrocks, and that he understood Detective Horrocks was a police officer who could use the information to his detriment.

[183] The initial part of the interview starts out in a non-confrontational manner. Detective Horrocks asks Mr. Corner about his education and whether he had applied for welfare. For the most part, it is Detective Horrocks who does most of the talking in the interview. Mr. Corner notes that his lawyer told him not to say anything. In response, at page 35 of the transcript, Detective Horrocks comments:

HORROCKS: Mm-hmm. And that’s…that’s good advice, he is a lawyer and that’s what you do, you talk to a lawyer and ask for advice, but I think you’re gonna have to recognize at some point - - .

CORNER: Yeah, I’ll have to speak about it.

HORROCKS: You’re…you - -.

CORNER: I know.

HORROCKS: You…your friend is dead.

CORNER: (inaudible)

HORROCKS: You’re sitting here accused of killing your friend and you may be…you think at this moment I’ll just say it’s not me, it’s not me, it’s not me, but even those kinda things just make you look that much worse. You’re the one who went to his family…

[184] In this passage, Detective Horrocks appears to be suggesting to Mr. Corner that exercising his right to silence makes him look worse. This kind of inducement is inappropriate.

[185] It is not every inducement, however, which will render a statement involuntary. As noted in the Oickle decision:

In summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne.

[186] In the example just noted, Mr. Corner subsequently tells Detective Horrocks that he is done speaking, which is a reference to the advice he had received from his counsel. I conclude that the inducement by Detective Horrocks was not strong enough to raise a reasonable doubt about the voluntariness of the statement at this point.

[187] On page 38 of the transcript, he continues to talk to Mr. Corner and makes reference to Mr. Corner’s family sitting at home feeling scared. Detective Horrocks states:

…they’re scared to death for their other kids ‘cuz they don’t want you around [him], and your response is I’m gonna say nothing, and you think that’s…that’s reasonable? You think that’s acceptable? You don’t think at some point you have to at least give some inclination that you’re not an evil guy, you’re not some crazed killer that killed somebody for no reason and now walks around just telling…as long as I keep saying I didn’t do it I’ll be okay.

[188] Again, this appears to be an attempt by Detective Horrocks to call into question the advice he has received from legal counsel, and to suggest that remaining silent is not reasonable or acceptable. I consider this to be an improper inducement. However, Mr. Corner does not appear to be at all responsive to the inducement. At the end of the lengthy commentary by Detective Horrocks, he asks Detective Horrocks what he wants him to say. Detective Horrocks tells Mr. Corner that he wants him to tell the truth, and in response Mr. Corner states, “I already gave her the full story”.

[189] At page 47 of the transcript, Detective Horrocks again appears to be critical of Mr. Corner for refusing to talk. He states:

Your friend is dead, you killed him, you go to jail for him. And then you spend the rest of your life tellin’ a bunch of guys in the jail about, uh, oh yeah, I was pretty smart, I kept my mouth shut.

[190] Again I view this as an improper inducement by Detective Horrocks to ignore the advice given to Mr. Corner by his counsel. Nevertheless, after Detective Horrocks finishes his statement it does not appear to have any effect on Mr. Corner, who expresses concern that Detective Horrocks might be wanting to show him some gory pictures.

[191] At page 54 of the transcript, the following exchange occurs between Mr. Corner and Detective Horrocks:

CORNER: I’m just going to follow my lawyer’s advice.

HORROCKS: Uh, yeah, I know. You know why you…you’re gonna suddenly do that Kennan? ‘Cuz you know you’re screwed and you’re scared to death. You can’t do it. You know what? Sometime when you’re sittin’ there by yourself thinkin’ about this, you’re gonna think holy shit, I should’ve told them. The guy gave me one opportunity to be honest, he gave me one opportunity to stand up and be a man, take responsibility for what I did, explain it. I wanna hear your version, not because I, uh, think you’re this big evil gun toting gang banger, I wanna hear your version of events because I think something more went on…

[192] I am still satisfied, however, that these comments which can properly be considered inducements do not raise a reasonable doubt about whether the will of Mr. Corner has been overborne. Mr. Corner continues to deny any responsibility for the shooting, and when questioned about the evidence of two women who reportedly saw him after the event Mr. Corner responds that he never even left the garage, and he further denies that he walked through the church parking lot that day where the two women were reported to have seen him.

[193] The second portion of the interview involved police taking Mr. Corner to the park where the murder weapon had earlier been found. There do not appear to be any inappropriate comments by the police officers during this period of time, until they are returning to the police station. Just prior to their arrival at the police station, Detective Horrocks states:

You know what we should do? We should drive over to Shabir’s house, right now, and see his mother. We should have you explain this to her. What’s the turnaround on the uh, DNA on that?

It is apparent that this could be taken as a threat to take Mr. Corner over to the victim’s home to speak with the family. However, it would be apparent to Mr. Corner that this was not in fact occurring and Mr. Corner does not make any comment, subsequently, until they arrive back to the police station.

[194] The third part of the interview takes place back at the police station. During this portion of the interview I am concerned that the comments by Detective Horrocks are no longer isolated events, but are far more frequent, and are creating an oppressive atmosphere.

[195] At page 18 of the third segment of the interview, Detective Horrocks states:

HORROCKS: Is everybody in court gonna sit back and go, wow, that Keenan, he knows his stuff, eh? I guess all these experts are wrong. You’re missin’ it here, you’re missin’ it here. This is your opportunity to tell your side of the story. You’re completely missing it, you’re sittin’ there, look at ya, you got your arms folded, you’re all…you got your hood up, you’re not gonna say nothin’. Good for you, don’t say anything, I don’t need it. The whole point of this was for me to get to know you.

In response to that comment, Mr. Corner responds:

CORNER: I’ll talk about it, just bring…

HORROCKS: I don’t - -.

CORNER: …my lawyer then.

[196] What is apparent is that at this point Mr. Corner is going to have his silence referred to in court. Further, he is being told that this is his opportunity to tell his side of the story. This inducement, in my view, is very inappropriate. Mr. Corner’s silence will of course not be referred to in court. Even more important , it appears that these comments have had an impact on Mr. Corner, who responds that he is prepared to talk about it but he wants to speak to his lawyer. On page 19, Detective Horrocks again reiterates that this is his time to tell his story. On page 28, the following exchange occurs:

HORROCKS: You can explain that, I’ll look forward to that day. And I’m gonna come into court and say well I gave him an opportunity to tell me the truth and all he did was continue to lie. And even when I brought all of the…

CORNER: I never lied.

HORROCKS: …evidence to him.

CORNER: All I did was say - -.

HORROCKS: You’ve lied all the way through.

CORNER: I’m waiting ‘til I have…

HORROCKS: No.

CORNER: …a lawyer.

[197] This is another clear example of Detective Horrocks telling Mr. Corner that his silence will be referred to by him in the court proceeding. There is also evidence that this did have an impact on Mr. Corner, who responded by stating that he was waiting until he had time to speak to his lawyer. Mr. Corner now seems to be influenced by the improper inducements to respond.

[198] From this point forward, Detective Horrocks continues to criticize Mr. Corner for denying everything. He compares Mr. Corner to “the worst criminals you can find”, apparently because he continued to deny any involvement. At page 36 of the third portion of the statement, he again reiterates that he gave Mr. Corner an opportunity “to tell me how this all went down”, and further tells him that “after tonight I don’t wanna talk to ya. You’re on your own”. To which Mr. Corner replies, “I just can’t believe this”.

[199] Taking into account the improper inducements made by Detective Horrocks in the third portion of the statement, in combination with the generally oppressive atmosphere which prevailed during this third part of the interview, I can no longer be satisfied beyond a reasonable doubt that the statements made by Mr. Corner in this third part of the interview are voluntary. Thus, while I find that the statements by Mr. Corner in the first two portions of the interview on March 1, 2014 were voluntary, the statements in the third portion of the interview following the return to the police station have not been proved to be voluntary beyond a reasonable doubt and are, therefore, inadmissible.

[200] I now turn to a consideration as to whether those portions of the statement on March 1, 2014, which I have concluded were voluntary are, nevertheless, rendered inadmissible by virtue of any connection to part two of the statement to Detective Melnick on February 19, 2014. In other words, has the statement given by Mr. Corner on March 1, 2014 been tainted by the earlier inadmissible portion of the statement given to Detective Melnick on February 19, 2014.

[201] In R. v. Plaha, 2004 ONCA 21043, [2004] O.J. No. 3484, the Ontario Court of Appeal set out the issue clearly as follows:

This appeal presents a fact pattern well known in the case law. The appellant’s rights under s. 10(b) were violated. He gave statements to the police which were clearly inadmissible by virtue of s. 24(2). He was then properly advised of his right to counsel and chose to exercise that right. After he exercised that right, he gave another statement to the police. On this fact scenario, if the last statement is considered in isolation from the earlier statements, there is no Charter violation and hence no question of excluding the evidence under s. 24(2). The case law demonstrates, however, the last statement cannot be considered in isolation. As Sopinka J. said in R. v. T.(E.) (1993), 1993 SCC 51, 86 C.C.C. (3d) 289 and 306 (S.C.C.):

…if a statement is followed by a further statement which in and of itself involves no Charter breach, its admissibility will be resolved under s. 24(2) of the Charter…

[202] The court in Plaha, supra, went on to explain that there are two components to section 24(2). The first is a threshold requirement. The impugned evidence, which in this case is the statement to Detective Horrocks, must be obtained in a manner that infringed a right under the Charter. If this threshold is crossed, then one turns to the evaluative component of section 24(2) to determine whether the impugned evidence would bring the administration of justice into disrepute.

[203] The court in Plaha explains that the jurisprudence establishes a generous approach is taken to the threshold issue. A causal relationship between a breach and the impugned evidence is not necessary. The evidence will be obtained in a manner that infringed a Charter right if, on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be “temporal, contextual, causal or a combination of the three”.

[204] I have concluded that there is no causal relationship between part two of the statement with Detective Melnick, which involved a Charter breach, and the statement given to Detective Horrocks for the following reasons:

• The statements were taken nine days apart, and during the interim the police investigation had accumulated a considerable amount of additional evidence which implicated Mr. Corner in the shooting;

• The earlier interview had been conducted by Detective Melnick. The interview on March 1, 2014 was conducted by Detective Horrocks. Detective Melnick was not involved at all in the interview with Detective Horrocks, although he had been involved in the arrest of Mr. Corner approximately five hours earlier;

• At the time of Detective Horrock’s interview with Mr. Corner, Mr. Corner had been arrested for the murder of Mr. Niazi. He had received a police caution and his section 10 rights. He had exercised his right to counsel and had spoken with his lawyer on two occasions. He told Detective Horrocks that he was satisfied with the advice he received;

• While there was reference to the earlier interview by Detective Melnick, this was in the context of Detective Horrocks telling Mr. Corner that the police did not accept his story that there was a home invasion. The premise for the interview was that Mr. Corner was responsible for the shooting, and Detective Horrocks wanted an explanation as to what happened. Mr. Corner’s attempts to go back to his story of a home invasion were rejected repeatedly by Detective Horrocks as not credible and not of interest to him. In addition Detective Horrock’s reference to the report of a home invasion was clearly a reference in the earlier statements made by Mr. Corner before Part Two of the interview on February 19^th. I have previously concluded that those statements are properly admissible.

[205] As I have also found that Part Two of the statement by Mr. Corner on February 19^th was not voluntary I must also consider whether the statement on March 1, 2014, is rendered inadmissible by virtue of its connection to Part Two of the statement to Detective Melnick on February 19, 2014. This issue is addressed by the Supreme Court in its decision R. v. I.(L.R.) and T(E.), 1993 SCC 51, [1993] SCJ No. 132. In this decision the court comments:

Under the rules relating to confessions at common law, the admissibility of a confession which had been preceded by an involuntary confession involved a factual determination based on factors designed to ascertain the degree of connection between the two statements. These included the time span between the statements, advertence to the previous statement during questioning, the discovery of additional incriminating evidence subsequent to the first statement, the presence of the same police officers at both interrogations and other similarities between the two circumstances.

[206] It is apparent that the analysis contemplated under the common law rule for voluntariness raises similar considerations to the Charter analysis outlined in R. v. Plaha, supra. For the same reasons as outlined above I have concluded that those factors do not justify exclusion of the statements made to Detective Horrocks in the first two portions of the interview on March 1, 2014.

Utterances in the Cells

[207] On the day following the interview with Detective Horrocks, Mr. Corner met again with Detective Horrocks in the cell area. This meeting appears to have been prompted by comments made in the final portion of the meeting on March 1, 2014, when Mr. Corner asked to speak with him off the record in the cell area. During the course of this discussion, Mr. Corner gave Detective Horrocks the identity of another individual who he had suggested was involved in the shooting. The discussion in the cell area appears to be, clearly, a continuation of the discussion in the latter part of the interview with Detective Horrocks on March 1, 2014. It is connected both temporally and contextually. On that basis I have concluded that this statement is not admissible at trial, given its close connection to the earlier statement which I have also concluded is inadmissible.

Justice M.K. McKelvey

Released in Open Court: March 23, 2016

NOTE: As noted in court, on the record, this written ruling is the official record of the decision.

OSHAWA COURT FILE NO.: 15/13823

DATE: 20160323

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Respondent

– and –

KEENAN CORNER

Applicant

RULING ON BLENDED VOIR DIRE

Justice M.K. McKelvey

Released: March 23, 2016