CITATION: R. v. Jama, 2017 ONSC 470
DATE: 20170123
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
LIBIN JAMA, SALMA ABDULLE, ABDULAZIZ EGAL and ROGAR BRYAN
Tom Lissaman and Danielle Scott
for the Crown
Daniel Brodsky and Allison Pyper
for Libin Jama
Robert Nuttall and Angela Ruffo
for Salma Abdulle
Dirk Derstine and David Parry
for Abdulaziz Egal
David Bayliss and Karen Lau-Po-Hung
for Rogar Bryan
HEARD: September 12, 13, 14, 15 2016
RULING ON CHARTER APPLICATION
TROTTER J.:
INTRODUCTION
[1] The four accused persons were jointly charged with the second-degree murder of John Maclean. It was alleged that, on February 12, 2014, they were involved in an altercation with Mr. Maclean at his apartment building in Toronto. What seemed to start as a verbal dispute moved outside into the parking lot, where Mr. Maclean was brutally attacked and then stabbed to death.
[2] Prior to jury selection, Mr. Derstine for Mr. Egal (“Egal”), and Mr. Bayliss for Mr. Bryan (“Bryan”), applied to exclude evidence of an encounter between their clients and the police on the day after Mr. Maclean was killed. It was argued that their rights were violated under ss. 7, 8 and 10(a) and (b) of the Charter. They sought exclusion under s. 24(2). At the same time, through a blended voir dire procedure, the Crown attempted to prove the voluntariness of the men’s utterances during this encounter.
[3] At the end of the voir dire, on September 19, 2016, I announced my decision:
For written reasons that will be delivered at a later date, the application of Mr. Egal and Mr. Bryan is allowed. I find that they were both detained by the four officers involved in questioning them that day. Consequently, their rights under ss. 10(a) and (b) of the Charter were violated. For this reason, and reasons related to the complete failure of the officers to create an accurate record of what transpired during that detention, evidence relating to this entire encounter will be excluded at trial.
These are my reasons.[^1]
FACTUAL BACKGROUND
(a) Introduction
[4] At the outset of the case, the identity of each accused person was contentious.[^2] The Crown relied on security camera images of persons inside the apartment building before the killing. The Crown also intended to lead evidence of a police encounter with Egal and Bryan the next morning, when they were seen walking together, close to the apartment building. The purpose of this evidence was to connect Egal and Bryan to the security camera images, to show the prior association of all four accused before the killing, and the subsequent association of Egal and Bryan afterwards.
(b) The Lobby Photos and Detective Dawson
[5] When the police arrived on the scene, two witnesses came forward. One of them, the 911 caller, said that four people were involved in the attack. Another saw five people in the area, three of who (two females and a male) repeatedly kicked something or someone on the ground.
[6] Detective Shannon Dawson of the Toronto Police Service (TPS) was one of the lead investigators. In the early morning hours of February 13, 2014, she had already obtained some video footage of four people entering the apartment building lobby at about 7:00 p.m. on February 12, 2014. At this point in time, the police did not know the identities of these persons.[^3]
[7] Later that morning, the four officers who encountered Egal and Bryan reported for duty. They were briefed and then assigned to assist homicide with its investigation. At 9:00 a.m., Det. Dawson briefed three of the officers. She showed them images from the security cameras, asked if any of the officers knew them and told them that they were “persons of interest.” She agreed that none of the persons in the lobby footage was “arrestable.” They were not “suspects.” Det. Dawson said she did not know what role(s), if any, they might have played in the homicide.
[8] Det. Dawson testified that, later in the day, at about 1:20 p.m., P.C. Bhatti told her that they encountered two males in the area who identified themselves as Egal and Bryan. Egal had a fat lip, which he claimed to have sustained while playing basketball the previous night.
[9] On the voir dire, an issue arose as to whether the officers performed checks on Egal and Bryan, to confirm their identities. Detective Dawson could find no indication that there had been.
(c) The Evidence of the Officers
(i) P.C. Steve Boumeester
[10] When P.C. Boumeester, who is 6’1 and 215 lbs., reported for work on February 13, 2014, he (along with P.C. Bhatti and P.C. Terzopolous) was shown some video clips. They did not recognize anybody. They were dispatched to help out at the scene. However, P.C. Boumeester could remember very little about that assignment. He did not know the method of killing or what he was asked to look for.
[11] The four officers were then assigned to attend at a community housing office to pick up more video images. It is curious that four police officers were dispatched to perform this simple retrieval task. On their return trip to the station, the officers drove westbound along John Garland Blvd. They saw two men walking in the same direction. P.C. Boumeester said that one of them looked familiar from the images they were shown. He testified that he must have said something that caused the driver to re-direct the car to a mall parking lot, just north of the sidewalk where the men were spotted. Once parked, all of the officers got out of the car and approached the men, who had stopped walking by this point in time.
[12] P.C. Boumseester had a brief conversation with Egal about where he was coming from and where he was going. Egal produced identification. P.C. Boumeester noticed a cut on Egal’s lip, which Egal said he sustained playing basketball the night before. P.C. Boumeester said that he never touched Egal, nor did he threaten him or offer any inducements. Egal was calm and cooperative. Had Egal wished to walk away, P.C. Boumeester would have let him.
[13] P.C. Boumeester said that he was three feet from Egal. He was not sure whether other officers engaged with him or not. P.C. Boumeester may have said “hi” to Bryan, but there was no further conversation. Curiously, Bryan was the person that P.C. Boumeester recognized from the video, but when he got out of the car, he investigated the man he did not recognize, Egal. He said that they were with Egal and Bryan for 5 to 10 minutes.
[14] In cross-examination, P.C. Boumeester said that he prepared his notes, by himself, at the station. In his notes, he stated that he recognized both men from the video images. In his testimony, he admitted that this was a mistake and he only recognized one (i.e., Bryan). P.C. Boumeester was cross-examined on his preliminary inquiry testimony when he said that he thought both men were related to the homicide investigation. He admitted that this was the truth. P.C. Boumeester spoke to Egal because he was with the other male. There was a good deal of information in his notes about Bryan, even though he did not speak to Bryan and he claimed to have written his own notes.
[15] P.C. Boumeester denied there was a plan to separate the men. He was not concerned about officer safety. He said the men were stationary when they approached. He denied that the officers told them to stop. After being prompted by his preliminary inquiry evidence, P.C. Boumeester said that, at the end of the encounter, the men were told that they could go. He said that it was a way of ending the conversation and that they did not need permission to leave.
[16] P.C. Boumeester testified that, because the men were merely persons of interest, there was no obligation to advise them they were not obliged to speak to the officers. He agreed that persons who are not cautioned are more likely to speak and when he asked Egal about his lip and his whereabouts the previous night, he was asking about the homicide. On the other hand, he said he was making conversation and it was something to talk about.
[17] P.C. Boumeester testified that he did not conduct checks on the men. He was unsure whether any of the other officers conducted checks.
(ii) P.C. Harmandeep Bhatti
[18] Like P.C. Boumeester, P.C. Bhatti, who is 5’9” and 175 lbs., described the briefing with Det. Dawson. He said the people in the video images were persons of interest. P.C. Bhatti thought he had a “slight idea” who one of the individuals might have been (Egal). The officers attended at the crime scene, apparently with no particulars about what they were supposed to do.
[19] P.C. Bhatti testified about going to pick up more video and returning to the station. He was driving, P.C. Boumeester was in the front passenger seat and the two others were in the back. As they drove along John Garland Blvd., P.C. Bhatti recognized Egal and thought that the other man was one of the persons of interest from the video footage. P.C. Bhatti could not remember exactly, but he may have said something like, “Hey, look, it’s Egal. And the other guy looks like the guy in the video.” This contradicts P.C. Boumeester’s evidence that he was the one who spoke up to indicate that one of the men looked familiar from the video. Moreover, P.C. Bhatti marked a place on a map significantly different from where P.C. Boumeester said they first observed the males. Also, and contrary to P.C. Boumeester, P.C. Bhatti said that the two men had not stopped before the officers approached them.
[20] P.C. Bhatti testified that, when they approached the men, one of the officers said, “Hey, what’s going on?” He had done this with Egal a number of times in the past. It was at that point that they stopped. He assumed that Egal recognized him. P.C. Bhatti said there was a casual conversation with Egal and, at first, no one was talking to Bryan. However, the group moved off the sidewalk and P.C. Bhatti ended up talking to Bryan.
[21] P.C. Bhatti was doubtful whether Mr. Bryan had given his correct name, perhaps owing to the fact that his first name is “Rogar” (a name that he thought was unusual). Bryan said, “No, that’s my name” and, apparently without prompting, produced identification. The interaction with Mr. Bryan took about 2 to 5 minutes and they were about four feet apart. The entire interaction with the men was 10 minutes in total. He said that there was no physical contact with the men and no directions were issued. The interaction ended with one of the officers saying something like, “Okay guys, have a good day.” P.C. Bhatti said that, had they refused to speak, the officers would not have done anything because the two men were not required to speak with them. P.C. Bhatti took “scratch notes” on a piece of paper, and not from his officer’s notebook.
[22] While P.C. Bhatti’s examination-in-chief was relatively straightforward, his cross-examination was not. When P.C. Bhatti thought he recognized Egal and the other person, who might have been in the video, there was some discussion among the officers about what they were going to do. He explained that, after getting out the police cruiser, the officers approached the two men in a diagonal direction as they moved towards the sidewalk. The officers stopped before reaching the sidewalk (on the “grassy area”, even though it was covered in snow) and waited for the men to arrive at the same point. P.C. Bhatti insisted that they did not stand on the sidewalk because they did not want it to appear as if they were blocking their way. P.C. Bhatti said he did not want to infringe their rights. In the back of his mind, P.C. Bhatti thought the men were involved in the homicide. P.C. Bhatti said that the encounter was “part social and part not.” At the preliminary inquiry, he said it was a “social call” and agreed that he just wanted to “shoot the shit” or “say hi” to the two men. I will return to this theme below, but I do not accept this as the reason for stopping Egal and Bryan that day. P.C. Bhatti eventually admitted that they went to chat with the men because they were persons of interest in the homicide, and that he merely “played it” as a social call. He said that he did not want to “hem them in” or make them feel intimidated or lie being investigated (even though they were).
[23] P.C. Bhatti gave no real explanation for why he spoke to Bryan when he already knew Egal, especially in light of his “social call” evidence. Moreover, he had nothing in his notes about his discussions with Bryan. P.C. Bhatti could not provide a reasonable answer for why he wrote notes on “scratch paper” (which turned out to be a 208 Card), instead of in his police notebook. He agreed that he should have written directly into his notebook. As he said, “Maybe I should have recorded their conversations better.” He admitted that he shredded the 208 Card. He admitted that he should not have destroyed it. He said, “I was not thinking at the time.”
[24] P.C. Bhatti denied that the officers planned to split the two men up. He acknowledged that the police often use this as a tactic, but it was not used on this occasion. He agreed that the officers did not tell the men that they were persons of interest because they resembled the persons in the video footage. They were not advised that they could leave at anytime. P.C. Bhatti denied that, at the end of the encounter, the men were told that they could leave.
[25] P.C. Bhatti acknowledged that he asked one of the other officers to perform checks on the Mr. Egal and Mr. Bryan. He could not recall which officer. In his notes, he wrote, “ID confirmed.” This was consistent with asking someone to check the information.
[26] P.C. Bhatti admitted that he held Bryan’s SIN card briefly, but he did not remove it from his clothing. Back at the station, he wrote up his notes with the other officers. He consulted with his colleagues about details. He agreed that the encounter may have been as long as 25 minutes.
(iii) P.C. Chris Terzopolous
[27] P.C. Terzopolous, who is 5’10” and 175 lbs., was briefed with the others. He did not recognize anyone from the videos. He was asked to go to the scene to assist with forensics. However, he was not told anything about how the homicide occurred.
[28] P.C. Terzopolous was in the right rear seat of the cruiser. As the car was driven along John Garland Blvd., two males “caught our attention” who appeared to match the males in the video images. He could not recall the conversation in the cruiser. P.C. Terzopolous said that the officers approached the males and had a conversation with them. He said that they were told that an incident happened in the area and they were asked for their names and personal information. P.C. Terzopolous spoke to Egal, who provided a name and address. He recalled some discussion about basketball, but made no note of it because he did not think it was important. P.C. Boumeester was also speaking to Egal and this went on for about half an hour. The other two officers were speaking to Mr. Bryan.
[29] P.C. Terzopolous was not sure whether he called the station to confirm identities, although this was his practice. If he called, he would have used his cellphone. A police check via phone can take three to four minutes (and maybe twenty), depending on how busy the station is.
[30] P.C. Terzopolous testified that he did not tell Egal that he was free to leave, but Egal did not say he wanted to leave or that he did not want to talk. He could have left if he wanted to. P.C. Terzopolous did not touch Egal and there were no threats, promises or inducements. The conversation was casual and Egal seemed very calm. P.C. Terzopolous noticed the injury to Egal’s lip, but he could not recall asking him about it.
[31] In cross-examination, P.C. Terzopolous testified that, when they saw the males, the officers thought they were somehow involved in the homicide. Their purpose was to get information from them and pass it on to the homicide officers. P.C. Terzopolous made a decision not to take his notebook with him when approaching the men. Consequently, all of his notes were made after the fact. P.C. Terzopolous thought that the entire encounter lasted about 10 minutes. He had no recollection of whether Egal and Bryan were told that they were free to go. He could not recall anything that was said in response to specific questions.
[32] P.C. Terzopolous acknowledged that he had experience dealing with suspects and witnesses, but not a lot of training or experience with persons of interest. He did not think that he was required to advise the two men of their Charter rights because they were not detained. He acknowledged that police officers generally split people up when questioning them, mostly for officer safety reasons. He said that the context of a homicide would raise red flags on this issue.
(iv) P.C. Zach Melerowicz
[33] P.C. Melerowicz, who is 6’1 and 180 lbs., went to the initial parade, but had to attend court. He was not at the briefing with Det. Dawson. He was not shown the lobby images. However, P.C. Melerowicz seemed to have a better understanding of the homicide. He knew that it was stabbing and, when they went to the scene, he looked for a weapon and blood.
[34] P.C. Melerowicz testified about attempting to retrieve further video and coming up empty-handed. He said that P.C. Boumeester, not P.C. Bhatti, was driving the scout car as they returned to the station. As they drove along John Garland Blvd., one of the other three mentioned something about recognizing one or more of the men from the lobby images. Contrary to the other three officers, who testified that the car was driven into a parking lot, P.C. Melerowicz testified that the car was pulled over to the curb, in a “live” traffic lane. The officers got out and approached Egal and Bryan head-on. Someone asked if they could have a “word” with them.
[35] P.C. Melerowicz testified that Egal and Bryan were split up, but he did not know why. He asked Mr. Bryan to “step over” to the side to speak with him. P.C. Melerowicz asked for photo identification, but all Bryan could produce was his SIN card. Bryan was asked about his association with Egal and what he had been doing, but P.C. Melerowicz could not recall who asked the questions and Bryan’s exact responses.
[36] P.C. Melerowicz testified that there was no physical contact with Bryan, nor any threats or inducements. No caution was given. P.C. Melerowicz said he would have let Bryan walk away had he wished to do so. He described their interaction as very calm, lasting between 5 to 10 minutes, but closer to 5. Because he did not see the still shots, P.C. Merlerowicz was acting solely on the information provided by his colleagues.
[37] In cross-examination, P.C. Melerowicz said that, after the questioning, the men were sent on their way or were allowed to leave. He adopted his testimony at the preliminary inquiry in which he said, “we let them go” and “we let them leave.” However, P.C. Melerowicz maintained, at the preliminary inquiry and at trial, that the men could have chosen not to speak to the officers.
[38] There was a good deal of information in P.C. Melerowicz’s notebook about dealings with Mr. Egal. However, P.C. Melerowicz did not deal with Mr. Egal. This information must have come from the other officers when they discussed the case back at the station.
(v) Findings
[39] It should be apparent from this brief summary that the evidence was rife with inconsistencies. This characterization applies to the four officers who encountered Egal and Bryan on the street. It does not apply to Det. Dawson, whose evidence I accept in its entirety.
[40] As for the other officers, points of inconsistency include the following: (1) information received about the homicide and the source of that information; (2) which of the officers recognized Egal and/or Bryan and, in the case of Egal, whether it was from the video images or past dealings; (3) whether there was conversation about the matter in the police car; (4) whether the car was stopped on the street or driven into a parking lot; (5) the angle that the officers approached Egal and Bryan on the street (i.e., head on or from the side); (6) whether Egal and Bryan were walking when the police approached them or whether they were already stopped; (7) whether there was snow on the ground (when there undoubtedly was); (8) what was said to Egal and Bryan when the two groups first met; (9) whether Egal and Bryan were separated by the officers, and whether this was done with a purpose (i.e., officer safety); (10) the length of time of the street encounter; (11) whether computer checks were performed, by whom, and by what method (radio or cellphone); (12) whether Egal and Bryan were told that they were allowed to leave; (13) the number of officers who spoke to Det. Dawson upon returning to the station; and (14) whether the officers prepared their notes independently or together. Essentially, every aspect of the interaction with Egal and Bryan was subject to conflicting accounts.
[41] Note taking was a serious problem in this case. On all of the evidence, I conclude that the notes of each officer are more or less a composite of the notes of all, prepared at the station after the fact. Despite this obvious collaboration, there was a complete failure to produce a reliable account of the dialogue with Egal and Bryan. With four officers, it would have been possible to record a near-verbatim account of this encounter, but this did not seem to be a priority.
[42] Staying with the topic of note taking, P.C. Bhatti’s evidence was problematic. He testified that he decided not to use his notebook; instead, he made “scratch notes” on a piece of paper. In fact, he wrote on what are now outdated 208 cards. This may have been excusable, had P.C. Bhatti not destroyed these notes after the fact. I was also troubled by his testimonial attempts to characterize the encounter with Egal and Bryan as a mere “social call.”
[43] These concerns impact significantly on my analysis of the issues in dispute.
ANALYSIS
(a) Introduction
[44] As noted at the beginning of these reasons, evidence of the entire encounter with Egal and Bryan was excluded because their rights were breached under ss. 10(a) and (b) of the Charter. It was unnecessary to address the right to silence claim under s. 7 of the Charter because such claims generally dissolve into the voluntariness inquiry: see R. v. Singh (2007), 2007 SCC 48, 225 C.C.C. (3d) 103 (S.C.C.), pp. 120-124. On this record, the Crown was unable to establish that the utterances of Egal and Bryan were voluntary.
(b) Egal and Bryan Were Detained
[45] During this application (both at the evidentiary stage, and during submissions), a great deal of attention was focused on the differences between “persons of interest” and “suspects.” This distinction may be important in some instances of psychological detention, but it was not important in this case. Like suspects, persons of interest are capable of being psychologically detained, depending upon the specific circumstances of the police encounter.
[46] Moreover, I was not distracted by the officers’ own characterizations of the status of Egal and Bryan. Each officer went out his way to emphasize that he considered the men to be merely persons of interest. They seemed to find solace in this characterization, laboring under the misapprehension that it created a Charter-free zone. As a group, the officers stressed the casualness with which they engaged Egal and Bryan. This was most apparent with P.C. Bhatti, who testified that the interaction was in the nature of a social call, just a friendly chat. I do not accept this evidence. The encounter was a focused, though not particularly well executed, step in aid of a homicide investigation.
[47] Neither Egal nor Bryan testified on the application. However, given that the test for determining whether there is a psychological detention is objective, neither was required to do so, despite carrying the burden of proof: R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.), at para. 50 and R. v. Moulton (2015), 2015 ONSC 1047, 19 C.R. (7th) 112 (Ont. S.C.J.), at para. 61. The accused also carried the burden of proof on the ss. 10(a), 10(b) and 24(2) issues: R. v. Suberu (2009), 2009 SCC 33, 245 C.C.C. (3d) 112 (S.C.C.), at para. 28.
[48] It is not necessary to trace the evolution of psychological detention under the Charter, stretching back to R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613. The modern approach is found in Grant, in which McLachlin C.J.C. and Charron J. acknowledged that not every police-citizen interaction amounts to a detention for Charter purposes (see R. v. Mann, 2004 SCC 52, at para. 19); instead, detention is achieved in situations when the accused person is “meaningfully constrained” and “has a genuine need of the additional rights accorded by the Charter to people in that situation.” (Grant, para. 26). The inquiry is objective in nature, hinging on whether the conduct of the police “would cause a reasonable person to conclude that she was not free to go and had to comply with the police demand or direction.” (para. 31) Similarly, the subjective intentions of the police are not determinative. See also R. v. MacMillan (2013), 2013 ONCA 109, 296 C.C.C. (3d) 277 (Ont. C.A.), at para. 36.
[49] Lastly, McLachlin C.J.C. and Charron J. summarized the nature of the inquiry in the following passages from their judgment:
While the test is objective, the individual’s particular circumstances and perceptions at the time may be relevant in assessing the reasonableness of any perceived power imbalance between the individual and the police. To answer the question of whether there is a detention involves a realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements. In those situations where the police may be uncertain whether their conduct is having a coercive effect on the individual, it is open to them to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go. It is for the trial judge…to determine whether the line has been crossed between police conduct that respects liberty and the individual’s right to choose, and conduct that does not. (para. 32)
As discussed earlier, general inquiries by a patrolling officer present no threat to freedom of choice. On the other hand, such inquiries can escalate into situations where the focus shifts from general community-oriented concern to suspicion of a particular individual. Focused suspicion, in and of itself, does not turn the encounter in a detention. What matters is how the police, based on that suspicion, interacted with the subject. The language of the Charter does not confine detention to situations where a person is in potential jeopardy of arrest. However, this is a factor that may help to determine whether, in a particular circumstance, a reasonable person would conclude he or she had no choice but to comply with a police officer's request. The police must be mindful that, depending on how they act and what they say, the point may be reached where a reasonable person, in the position of that individual, would conclude he or she is not free to choose to walk away or decline to answer questions. (para. 41)
[50] Lastly, McLachlin C.J.C. and Charron J. recognized (at paras. 44 and 50) that an accused person’s youth, inexperience and minority status is relevant to this analysis, as is the police-citizen ratio, and the relative sizes of the officers and the detained person(s).
[51] On all of the evidence, I conclude that a reasonable person, in the position of Egal and Bryan, would have perceived that they had no choice but to remain and interact with the police. Egal and Bryan were not part of a community-policing encounter; they were approached because the police thought they might be connected to a homicide. This was not a social call.
[52] If the conduct of the officers on the street was anything like their collective testimony on the voir dire, Egal and Bryan would have been confused by their interaction with the police. The minimization of the officers in their evidence signals caution. Left with a choice between whether I believe that the men had already stopped when the police approached them as opposed to the police stopping them, I prefer the latter evidence. Egal and Bryan had no reason to stop unless their path was blocked, they were told to stop, or both. Similarly, the officers’ evidence was confusing on what was said to the two men at the outset of the encounter. I accept as most plausible the evidence of P.C Terzopolous, who said that they announced that something had happened in the area and they wanted to talk to the two men about it.
[53] I find that, almost immediately, the officers separated Egal and Bryan from each other. No two officers could give a consistent account about this feature of the interaction, let alone how and why it happened. In all of the circumstances, I find that it was deliberate and that the two men were separated by being directed to “step over here.” Given that the men were being questioned about a homicide, there were obvious officer safety concerns, making the separation of the men more sensible. I note that, in Moulton, police officers also used words to the effect of “come with me for a second” or “let’s walk over here.” As Fairburn J. said at para. 64: “While not a direct order to go with the officer, it is a simple fact that [the accused] was not asked if he would with the officers. He was told to do that.” I find that is the case here.
[54] I also find that, after the identities of Egal and Bryan were ascertained, the police checked them for accuracy by calling the station, probably with a cellphone. This fact alone is not determinative of a detention (see R. v. B. (L.), 2007 ONCA 596, at para. 67); however, it is part of the factual makeup that I consider in concluding that there was a detention: Moulton, para. 66.
[55] In terms of the length of the detention, it was far from fleeting. I do not accept what it was around 5 minutes in length, as some of the officers suggested. It would have taken time to confirm the identification of Egal and Bryan. Moreover, the time that that the officers returned to the station suggests a lengthier encounter.
[56] One of the more troubling inconsistencies in the evidence concerned the manner in which the encounter with Egal and Bryan ended. I approach the resolution of this issue with caution, wary of the officers’ attempts at minimization. In the end, I conclude that, after the identification of both when was confirmed, Egal and Bryan were told that they were free to go. A reasonable person would view this ending as confirmation that they were not previously free to leave.
[57] Having regard to the totality of the circumstances of this encounter between four average to large-sized, uniformed and armed police officers, and two young black men in a high crime area of Toronto, a reasonable person in the circumstances of Egal and Bryan would feel that their liberty was constrained and they were not free to continue on their way. I find on a balance of probabilities that both men were detained for the purposes of s. 10 of the Charter.
(c) Section 10(a) and (b) of the Charter Were Infringed
[58] Having determined that Egal and Bryan were detained, it is a short and easy step to find that their rights under s. 10(a) and (b) of the Charter were infringed. The Crown did not strenuously suggest otherwise, having argued that the detention of the two men was more or less “accidental.” Barring exigent circumstances, detainees must be advised of the reason for their detention and of their right to counsel: see R. v. Suberu (2009), 2009 SCC 33, 245 C.C.C. (3d) 112 (S.C.C.), at p. 18 and R. v. Willier (2010), 2010 SCC 37, 259 C.C.C. (3d) 536 (S.C.C.), at p. 548.
[59] I find that both ss. 10(a) and (b) were infringed.
(d) The Evidence Should Be Excluded Under s. 24(2)
[60] There was little argument on this issue. Again, the Crown did not strenuously oppose exclusion if I found a breach. Mr. Lissaman, for the Crown, took the fair position that, if I found a Charter breach that warranted the exclusion of the utterances of Mr. Egal and Mr. Bryan, the Crown would not seek to rely on any aspect of the encounter from that morning.
[61] Without marching through the s. 24(2) Grant factors chapter and verse, exclusion is warranted in this case. I find that the breach was moderately serious. While the police did not get out of their car with the intention of infringing the rights of Egal and Bryan, they gave little thought to what they were doing, both individually and as part of a group of four officers.
[62] In Grant, at para. 92, McLachlin C.J.C. and Charron J. confirmed the “presumptive general, although not automatic, exclusion of statements obtained in breach of the Charter.” There is no compelling reason to deviate from that approach in this case. The utterances of the men identifying themselves was crucial to establishing their association after Mr. Maclean was killed. This evidence, as well the circumstances surrounding it (i.e., the entire stop and interaction with the officers), will be excluded under s. 24(2).
[63] A further factor fortifies my conclusion. As already noted, a number of officers attempted to minimize the nature of the encounter with Egal and Bryan. One of them attempted to characterize the stop as a mere “social call.” This position was eventually abandoned in cross-examination. While not nearly as serious as the impugned evidence in R. v. Harrison (2009), 2009 SCC 34, 245 C.C.C. (3d) 86 (S.C.C.), at pp. 97-98, it does heighten the seriousness of the breach.
[64] For the reasons, the evidence was excluded under s. 24(2).
(e) The Application of the Confessions Rule
[65] In addition to the Charter infringements, the applicants contended that the Crown was unable to discharge its burden to prove that the utterances of Egal and Bryan were voluntary. Given my findings on the Charter application, it is not strictly necessary to decide this issue. However, for the sake of completeness, I record my findings.
[66] The applicants argued that the conduct of the police in initiating and continuing the encounter with them amounted to oppressive circumstances that undermined the voluntariness of their responses to the police demands for information. I am doubtful that the oppressive circumstances arm of the confessions rule, as understood in R. v. Oickle (2000), 2000 SCC 38, 147 C.C.C. (3d) 321 (S.C.C.) and R. v. Hoillet (1999), 1999 CanLII 3740 (ON CA), 136 C.C.C. (3d) 449 (Ont. C.A.), applies to this situation. Oppression is more often litigated in the context of police interrogations, focusing on the psychological and physical features of the police-citizen encounter. Whether oppression should be extended to street encounters need not be decided in this case because the voluntariness issue can be resolved on a more straightforward basis.
[67] The police officers failed to create anything approaching a reliable record of their interactions with Egal and Bryan. The collective account was all rather general, impressionistic and in the gist. As Charron J.A. (as she then was) held in R. v. Moore-McFarlane (2001), 2001 CanLII 6363 (ON CA), 160 C.C.C. (3d) 493 (Ont. C.A.), at p. 517: “[T]he Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police.” That case dealt with the failure to record a statement of an accused person in custody. See, however, R. v. Belle (2010), 2010 ONSC 1618, 253 C.C.C. (3d) 222 (Ont. S.C.J.), at p. 237, in which the issue was discussed in the context of proper note taking of an encounter that did not realistically permit video recording. The underlying principles are the same: on a voluntariness voir dire, in order to prove that utterances are voluntary, the Crown must first be able to establish a reliable record of what was said between persons in authority and the accused person.
[68] In this case, there was a complete failure to produce a reliable record. I accept that audio or video recordings are not strictly necessary in order to establish a reliable record of a police-citizen encounter, especially one that occurs on the street. A record many be created through proper note-taking and reliable testimony about the encounter: see R. v. Shomonov, 2016 ONSC 1553, para. 19. But the record fell far short in this case. Consequently, the Crown was unable to prove that the statements were voluntary.
CONCLUSIONS
[69] For these reasons, the application of Egal and Bryan was allowed and all evidence of their encounter with the officers on February 13, 2014 excluded.
TROTTER J.
RELEASED: January 23, 2017
CITATION: R. v. Jama, 2017 ONSC 470
DATE: 20170123
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
LIBIN JAMA, SALMA ABDULLE, ABDULAZIZ EGAL and ROGAR BRYAN
RULING ON Charter Application
TROTTER J.
RELEASED: January 23, 2017
[^1]: In the meantime, Ms. Jama, Ms. Abdulle and Mr. Egal were convicted of second-degree murder; Mr. Bryan was acquitted.
[^2]: Ms. Abdulle testified in her own defence and essentially placed everyone at the scene of the attack in the parking lot. However, she attempted to absolve everyone from any wrongdoing, with the exception of Mr. Bryan, who she suggested inflicted the fatal stab wounds.
[^3]: Prior to the hearing of this application, the Crown brought a pre-trial application to adduce non-expert “recognition evidence” of a police officer, based on the principles in R. v. Leaney (1989), 1989 CanLII 28 (SCC), 50 C.C.C. (3d) 289 (S.C.C.). This related to the identification of Ms. Jama and Mr. Egal. I allowed the application on September 12, 2016. By the time the trial commenced, the identity of the accused as the persons in the lobby footage, and in other security camera images, was admitted.