Court File and Parties
COURT FILE NO.: CR-16-0052 DATE: 2017-04-19 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – Hilary Charlouis Applicant
Counsel: Alex Burns, for the Crown Christopher S. Rudnicki, for the Applicant
HEARD: April 18, 2017
The Honourable Justice James W. Sloan
[1] The applicant seeks to exclude his statements made to police at 58 Sherman Avenue North in Hamilton on January 14, 2015, on the basis that they were not voluntary and that his Charter rights were breached because he was not told of his right to remain silent and his right to contact a lawyer.
[2] In December 2014, the Hamilton police service commenced an investigation into the holders of two expired licenses for medical marijuana production. The licenses had been granted to Van Ut Pham and My Hung Huynh and had expired in March 2014.
Voluntariness
Constable Mark Griffin
[3] Constable Griffin has been a police officer since 2004 and was the team leader on January 14, 2015.
[4] He testified that there was no difference between numbers 58 and 58A Sherman Avenue North.
[5] He testified that when he knocked on the door, the accused answered and was cooperative and gave his name.
[6] He knocked on the door at 1:25 p.m. at which time he gave a copy of the warrant to the accused and explained why the police were there.
[7] He testified that at 1:28 p.m. Officer Gangon informed him that there was a grow operation in the building and that at 1:29 p.m. he arrested the accused for production of marijuana and possession of same for the purpose of trafficking.
[8] He testified that the accused stated that he understood his rights and further stated that he did not want to call a lawyer at that time.
[9] At that time he read the accused his rights to counsel and the caution from a printed form attached to his notebook. At 1:34 p.m. he called dispatch to send someone, to transport the accused to the police station which occurred at approximately 2:00 p.m.
[10] He stated that the accused was very cooperative and he did not place handcuffs on him. In answers to questions from the Crown, he stated that neither he nor anyone that he was aware of, assaulted or threatened or offered any inducement to the accused.
[11] He further testified, that after having been read his rights the accused took him down to the basement and turned on the lights.
[12] From conversations he had with the accused, he formed the impression that the accused was under the impression that there were two valid medical marijuana licenses and that he was working for the people who owned those licenses and he was taking care of the plants.
The Cross Examination of Constable Griffin
[13] Exhibits 3 and 4 show that there appear to be four exterior doors to the building, two storefront type doors on the front of the building facing onto Sherman Avenue North, one at the side and to the rear of the building facing onto Cannon Street East and one at the rear of the building on the second floor accessed by an exterior staircase.
[14] The police knocked at and entered the premises through the door at the rear of the building on the second floor.
[15] Griffin described the apartment as small but it looked like it was lived in, because it contained furniture and a bed and children’s toys.
[16] Griffin is the author of his notes (Ex 6), his witness/will-say statement (Ex. 5) and the Case File a Synopsis/Crown Synopsis (Ex 7).
[17] After agreeing with defence counsel that he has an obligation and professional duty to make detailed, accurate and complete notes at the time that the warrant was acted upon, he confirmed that none of the above documents include, whatever utterances the accused made to him, which caused him to form the impression that the accused was the caretaker of the marijuana plants.
[18] There are also no notes on what if anything the accused said while they were walking down stairs where the accused turned on the light.
[19] There are also no notes on the exact circumstances and location within the building where the accused made his statements.
[20] On April 18, 2017, for the first time, Griffin remembered that the accused also stated, with respect to being the caretaker of the plants that he had done this before. This was of course after the preliminary inquiry where Griffin had testified.
[21] In his notes (Ex. 6) at 4:27 p.m., Griffin wrote, that he asked the accused if he would like to provide a cautioned statement which the accused declined to provide.
[22] Griffin acknowledged that it would be very helpful for the Crown conducting the bail hearing to know that the accused had “confessed” to being the caretaker of the marijuana plants and further acknowledged that he should have made accurate notes about his discussion surrounding the accused statement(s) that he was a greens keeper.
[23] Griffin admits that the accused was detained immediately, but testified that there was no conversation about the facts of the case at that time and that the conversation took place approximately four minutes later, after he had been told about the grow operation and the accused had been told he was under arrest and was read his rights.
[24] With respect to the fact that Griffins notes at 1:26 p.m. have the word “arrest” struck out and the word “detained” inserted, Griffin testified that the word arrest was put in out of habit and maintained that the accused was not arrested at 1:26 p.m. but approximately four minutes later.
[25] He confirmed that he did not arrest the accused “right off the bat” and that he did not ask the accused to take him downstairs and turn on the light, but that the accused offered to do that.
[26] Griffin disagreed with the suggestion by defence counsel, that the accused told him within the first three or four minutes that he thought what he was doing was legal and that he had a license, although Griffin admitted that he may have said that.
[27] He further stated that he would make better notes in the future, because he does not make the same mistake twice.
Sargent Craig Leishman
[28] Sargent Leishman was one or two officers behind Griffin when they executed the warrant.
[29] He was there when the accused answered the door but he did not talk to the accused at any time.
[30] After another officer found the marijuana plants, he overheard Griffin giving the accused the usual warnings.
[31] He confirmed that the accused was cooperative and that to his knowledge there were no threats against or inducements offered to the accused.
[32] Although he could see Griffin and the accused having a conversation he could not hear what the conversation was about.
[33] He speculated that he thought Griffin arrested the accused right away, but stated he did not hear all of the words between them because he was doing his role which was to clear the building.
Constable Robert Monteforte
[34] Constable Monteforte was the officer who transported the accused to the police station.
[35] Griffin handed over the accused at approximately 2:00 p.m. and told him what the charges were.
[36] At that time, before leaving for the station, Monteforte read the accused his rights and he answered yes to both questions.
[37] At the station. The accused called and spoke with a lawyer, Albert Smelko.
Hilary Charlouis
[38] He testified that he lived in Branford for the last 15 years with his wife and a grandchild and had previously been working. However at age 64, after dispute with his employer about wages, he lost his job.
[39] It was at that time, that he testified he started working for Van Pham at 58 Sherman Avenue North.
[40] Although there may have been some confusion about the exact date that he lived there, he stated that he was there for approximately 15 months prior to being arrested on January 14, 2015.
[41] During this time, he testified that his wife and grandchild would visit him once every month.
[42] He testified that he got to his apartment through the left of 2 doors on the 2nd storey deck on the back of the building. He further stated there were no numbers on the doors.
[43] He testified that Pham paid him $2,000 cash every month, in addition to which he had free rent.
[44] In return for the $2,000 a month and free rent he testified that:
- He had no lease with Pham.
- He was to watch the apartment, however he did not expand on why he was to watch the apartment.
- He was there to make the place look lived in.
- He was to keep the department clean, but since he lived there, this does not seem to be a task that he would be doing for Pham.
- He did some drywall work when Pham gave him some material, however over a 15 month period, from his testimony it is hard to imagine that he did more than a few days worth of dry-walling.
- On a few occasions he shoveled snow.
- If any mail came, he would take it from the mailbox and keep it until Pham came to the building.
[45] He testified that the other door from the 2nd storey deck was Pham’s son’s apartment and his name was Andrew Pham.
[46] He testified that Andrew came once every 4 weeks and stayed for 4 days.
[47] He testified that he knew about the marijuana plants from Pham, who told him that it was his son’s business and that his son Andrew had a license to grow the marijuana.
[48] He testified that he asked to see the license and suggested that it should be on the wall of the building but Andrew told him the license was in the car and in the end he never saw the license.
[49] He testified that when the police came to the door and told him there was a grow-op in the building he responded “it is not mine”.
[50] When the police stated that they had found him here, he answered “I live here”, and went and sat on the couch and told police he did not have access to the basement of the building.
[51] He stated that no police officer ever told him at the 58 Sherman Avenue, about his right to remain silent and his right to speak to a lawyer.
[52] In cross-examination, the accused stated that he had lived in Branford for 15 years, that his government identification had his Branford address, that his mail would go to his Branford address and these facts were true on January 14, 2015.
[53] He testified that he knew that the house was being used as a grow-op because Mr. Pham told him.
[54] With respect to never having seen the license to grow marijuana the accused stated that “they tricked me”.
[55] After the police entered, the accused stated that he went and sat on the couch and continued watching the movie Rambo while he was talking to Griffin.
[56] He stated that he told police I do not know anything about lights but later showed Griffin where the light switch was.
[57] He further stated that he did not want to go downstairs and that he had no access to downstairs.
Voluntariness
[58] There is no issue with respect to whether or not the accused was assaulted, threatened or offered any inducements.
[59] Griffin testified that he did read the accused his rights from his notebook and Leishman, while not hearing every word, confirmed that Griffin was reading the accused his rights.
[60] The accused denies that his rights were read to him, however on the evidence before me I prefer the police version of events and conclude that the accused was read his rights.
[61] However the issue seems to be, since the accused was immediately detained when he opened the door, were the reading of his rights approximately 3 minutes later sufficient.
[62] On the facts of this case I hold that the reading of the accused’s rights to him, approximately 3 minutes after his being detained, was sufficient because as Griffin testified if there had been no grow op the police would have simply left.
[63] In addition, it is the accused’s testimony, that after he let the police officers in, he went and sat on the couch and continued to watch his movie.
[64] The main issue here seems to boil down to whether or not Griffin should have made better notes of the accused’s utterances either at the scene, the next day or shortly thereafter.
[65] The defence’s position with respect to the notes is that Griffin had an obligation to do a full investigation, and a professional obligation and a constitutional duty to make good notes, particularly with respect to any utterances of the accused.
[66] The defence argues that the Crown has a burden beyond a reasonable doubt to show that the utterances were voluntary, however here, there is no contemporaneous record for either the defence or the court to review to assist with that task.
[67] The defence relies on the case of R. v Moore-McFarlane, [2001] O.J. No. 4646, where the Ontario Court of Appeal at paragraphs 64 through 66 states that, “the inquiry into voluntariness is contextual in nature and that all relevant circumstances must be considered”.
[68] The court quotes from a Supreme Court of Canada decision in Oickle which reads, “The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over-and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.”
[69] The Moore-McFarlane case dealt with the accused at a police station in custody and whether or not the accused’s interrogation should have been an audio and/or video tape recorded.
[70] That is not the case here, although the defence suggests that the police would have at the very least have had cell phones with which a video recording could have been made. On the facts of this case I do not fault the police for not having made a cell phone video.
[71] However the defence does argue that the police had notepads, knew their duty to record what was said with respect to the accused’s knowledge of the marijuana plants and what was said about going downstairs to turn on the lights.
[72] The defence relies in part on the case of R. v Barrett, [1993] O.J. No. 1317, where after one of the police officers present during an interrogation failed to take any notes the court stated at paragraph 17, “It is not for me to tell the hold-up squad how to proceed for investigative purposes, but in so far as there are evidentiary consequences to their practice, I can say that they are unsatisfactory. Wherever possible, every officer in attendance at the interview who will want to refer to his or her notes as a memory aid for the purpose of giving evidence should take contemporaneous, independent notes. I would not expect as complete notes from the person conducting the interview and it is surprising here to find that those are the only notes and that they purport to be verbatim.”
[73] The court, in the case of R. v Rajab, [2004] O.J. No. 5795, stated at paragraph 23, “The Crown is required to put before the court evidence of all of the circumstances leading up to and surrounding the accused statement. Where the Crown fails to provide an adequate record, the burden of proof will not be met…. The maintenance of an adequate record of all of the circumstances leading up to the accused statement to the police is a matter within the complete control of the authorities and therefore a failure to maintain an adequate record may permit the court to draw an adverse inference with respect to the voluntariness issue. In some circumstances, a court might infer that evidence of inappropriate conduct is being suppressed. In other circumstances, a court might simply infer that the police in question honestly and reasonably felt there was no need for recording and preserving all of the circumstances, including their own words and conduct in the presence of the accused. I am of the view that the latter is the case before me”.
[74] The court went on at paragraph 29 to hold “The lack of an adequate record of the preliminary dealings with the accused, and the circumstances before me by itself raises a reasonable doubt as to the voluntariness of the statements.”
[75] On the facts of this case I find that the police were in breach of their duty to make and maintain an adequate record with respect to the very important aspect of all of the facts surrounding the utterances of the defendant.
[76] Therefore I am not satisfied beyond a reasonable doubt that the utterances made by the accused to Griffin were voluntary.
“J.W. Sloan” James W. Sloan