R. v. Alexis-McLymont et al., 2017 ONSC 6150

CITATION: R. v. Alexis-McLymont et al., 2017 ONSC 6150

COURT FILE NO.: 16/600

DATE: 2017/10/18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN v. JAIDEN ALEXIS-MCLYMONT, ANTHONY ELGIN and DYLAN HIRD

BEFORE: Justice I.F. Leach

COUNSEL: Neil Dietrich, for the Crown*

Nicholas Wansbutter, for the accused Jaiden Alexis-McLymont

Henry Van Drunen, for the accused Anthony Elgin

Luka Rados, for the accused Dylan Hird*

*Counsel participating in application and voir dire leading to these reasons

HEARD: September 5-7, 11-15, 18-22 and 25-29, 2017

ENDORSEMENT

Introduction

[1] The three accused persons in this criminal proceeding, (Jaiden Alexis-McLymont, Anthony Elgin and Dylan Hird), each were charged with:

• trafficking of a person under 18, contrary to s.279.011(1) of the Criminal Code of Canada, (“the Code”);
• procuring a person under 18, contrary to s.286.3(2) of the Code; and
• receiving a material benefit from trafficking of a person under 18, contrary to s.279.02(2) of the Code.

[2] Mr Elgin and Mr Hird also were charged with the following additional offences:

• sexual interference, contrary to s.151 of the Code;
• sexual assault, contrary to s.271 of the Code; and
• unlawful confinement, contrary to s.279(2) of the Code.

[3] Trial of the accused began with a three-day challenge for cause jury selection starting on September 5, 2017. On the evening of September 29, 2017, the jury delivered its verdict, finding each accused guilty of all counts set forth against him in the indictment.

[4] Between jury selection, and delivery of my preliminary instructions to the jury, the jurors were excused for my hearing of an extended voir dire application, brought by the Crown, to determine the voluntariness of videotaped statements made by Dylan Hird during a formal police interview conducted by Detective Constable Jeffrey McGregor, (“Detective McGregor”), of the Stratford Police Service, on February 29, 2016.[^1]

[5] That voir dire proceeded, within the formal trial, on September 7 and 11-13, 2017.

[6] At the conclusion of that voir dire, I ruled, for reasons to be delivered, that the Crown had not proven voluntariness of the relevant statements by Hird beyond a reasonable doubt, and that the statements accordingly would not be admissible in the trial.

[7] These are those reasons.

Overview

[8] The above charges stemmed from a series of events, (alleged at the time of the application but subsequently and effectively confirmed by the jury’s verdict), that took place in August of 2015. In particular, a 15-year-old girl from Stratford, who had run away from home, was invited via Facebook to meet in Kitchener “to smoke a joint”. However, on her arrival at a Kitchener bus terminal, she was taken to a local hotel where she was drugged with illicit narcotics, held against her will, used sexually by her captors, and prostituted repeatedly over the course of many days before effecting an escape.

[9] Four male suspects, including Mr Hird, were identified in the following weeks, during the course of a resulting police investigation. However, Mr Hird could not be located immediately. The Stratford Police Service issued a warrant for his arrest; a warrant that would remain outstanding for many months.

[10] In the course of events outlined below, Mr Hird was located and arrested by officers of the Peel Regional Police Service on the evening of February 28, 2016. Following medical treatment for injuries received in the course of his arrest, Mr Hird was taken to a division of the Peel Regional Police Service (“21 Division”) for formal police questioning, conducted in the late evening hours of February 28, 2016.

[11] In the early morning hours of February 29, 2016, custody of Mr Hird then was transferred from officers of the Peel Regional Police Service to members of the Stratford Police Service, at a mid-point between the two communities. Mr Hird then was taken to Stratford, where he was questioned by Detective McGregor later that morning.

[12] It was not disputed that Mr Hird repeatedly was cautioned and advised of his legal rights, including the right to counsel. Nor was it disputed that, following the arrest, the police successfully facilitated contact between Mr Hird and his counsel of choice on two separate occasions.

[13] The videotaped interview conducted by Detective McGregor, giving rise to the statements by Mr Hird which were the subject of the Crown’s application, began at approximately 9:29am on February 29, 2016. It then continued, albeit with some relatively short pauses, for about 35 minutes; i.e., until approximately 10:04am.

Further background and context

[14] During the voir dire hearing before me, to determine the voluntariness of the statements made by Mr Hird during that police interview, I was presented with evidence that included the following:

• viva voce testimony from Constable Michael Anderson, (a member of the Peel Regional Police Service, and assigned to its canine unit), who participated in the initial arrest of Mr Hird;[^2]
• viva voce testimony from Constable Kevin Arnem, (another member of the Peel Regional Police Service, and assigned to its canine unit), who also participated in the initial arrest of Mr Hird;
• viva voce testimony from Constable Michael Asanin, (an officer with the Peel Regional Police Service), who assumed custody of Mr Hird from Constable Arnem, remained with Mr Hird while he received medical treatment, returned Mr Hird to 21 Division for a formal police interview, and subsequently participated in transporting Mr Hird to a location on the way to Stratford, where he was turned over to officers of the Stratford Police Service;
• viva voce testimony from Constable Sheri-Lynn Brown, (another officer of the Peel Regional Police Service), who followed Mr Hird and Constable Arnem to the hospital where Mr Hird received medical treatment, and thereafter joined with Constable Asanin in remaining with Mr Hird while he received medical treatment, while Mr Hird was transported to 21 Division for a formal interview, and while Mr Hird subsequently was transported to the aforesaid location between Peel and Stratford for his transfer to officers of the Stratford Police Service;
• viva voce testimony from Detective Anderson McDonald, (a member of the Peel Regional Police Service, assigned to its Criminal Investigation Bureau), who conducted a police interview of Mr Hird at 21 Division;[^3]
• viva voce testimony from Constable Philip Coughlin, (a member of the Stratford Police Service), who was one of the two Stratford officers who travelled to a point between Peel and Stratford to assume custody of Mr Hird, before then transporting Mr Hird back to the holding cells at the headquarters of the Stratford Police Service;[^4]
• viva voce testimony from Constable Joey Otten, (another member of the Stratford Police Service), the second of the two Stratford officers who travelled to a point between Peel and Stratford to assume custody of Mr Hird, before then transporting Mr Hird back to the holding cells at the headquarters of the Stratford Police Service;
• viva voce testimony from Sergeant Anthony Burrows, (another member of the Stratford Police Service), who was the nightshift “officer in charge” of the Stratford Police Service headquarters and its holding cells when Mr Hird arrived there;
• viva voce testimony from Staff Sergeant Donald Jordan, (another member of the Stratford police service), who assumed “officer in charge” responsibility over the Stratford Police Service headquarters and its holding cells, from Sergeant Burrows, when the shift changed at 7am on February 29, 2016;
• viva voce testimony from Constable Eric Weller, (another member of Stratford Police Service, working as its identification officer), who weighed, measured, photographed and fingerprinted Mr Hird after his arrival at the headquarters of the Stratford Police Service;
• viva voce testimony from Detective McGregor who, as noted above, conducted the police interview giving rise to the statements which were the subject of the Crown’s voluntariness application in relation to Mr Hird;[^5] and
• viva voce testimony from Mr Hird himself.[^6]

[15] I will have more to say about certain aspects of that evidence during the course of my analysis below. For now, however, my factual findings relating to the context underlying the Crown’s voluntariness application included the following:

• On February 28, 2016, members of the Peel Regional Police Service were investigating an early morning incident involving alleged dangerous driving of a stolen motor vehicle, resulting in an accident, and a failure by the occupants of the vehicle to remain at the scene. In particular, the accident had taken place and the stolen vehicle was abandoned in or around Malton, a residential neighbourhood in Mississauga that includes Keenan Crescent and Brandon Gate Drive. A number of suspects were said to have fled the scene on foot, following the accident. Constable Brown testified that the first call to police in that regard had been received at approximately 6:00am in the morning.
• A resulting prolonged search of the residential area near the scene of the accident, (including a search by the canine unit, involving Constable Anderson and his police dog, that started around 10:00am and lasted approximately 60-90 minutes), located one suspect but not the two others.
• From their ongoing investigation, (including an interview of the first apprehended suspect), members of the Peel Regional Police Service nevertheless learned that one of the other two suspects may have been Mr Hird, and in turn discovered that Mr Hird was wanted on a Stratford-based warrant; i.e., a warrant relating to the charges leading to this criminal proceeding.
• In the late afternoon of the same day, (i.e., February 28, 2016), a resident of the same area, who lived at or near the location where the first suspect had been found, telephoned police to report seeing another possible suspect. In particular, the caller was a homeowner who lived at 3728 Keenan Crescent, and reported finding a suspicious young black male, estimated to be 17-18 years old, and approximately 170cm in height, with “afro” styled hair, hiding in a recycling/garbage bin outside his residence. The relevant young black male was said to be wearing a black hooded jacket, with black pants and black sneakers, and “grills” on his front teeth. The caller also reported that, upon being discovered, the young male jumped out of the garbage bin and ran in the direction of Brandon Gate Drive.
• Around 5:00pm that afternoon, members of the Peel Regional Police therefore once again were dispatched to the same Malton neighbourhood, in an effort to locate the additional suspect described by the caller. Numerous officers, including Constables Asanin and Brown, (both in full police uniform), were instructed to participate in the formation and maintenance of a containment perimeter surrounding the residential area where the second suspect had been seen.
• Between approximately 4:53pm and 5:06pm, members of the Peel Regional Police canine unit, (this time including both Constables Anderson and Arnem, and their respective police dogs), also were dispatched to the relevant area to see if they could track and locate the second suspect within the contained area. Constable Arnem arrived at the scene with his police dog at approximately 5:03pm, spoke with the resident who had called the police and, after obtaining/confirming the description noted above, had his dog pick up the relevant scent before embarking on an extensive search of the surrounding area; i.e., a primarily residential neighbourhood that nevertheless also included a local school and nearby green space. Constable Anderson arrived at the location with his police dog approximately 21 minutes later and joined in the search, moving separately from Constable Arnem. Constable Brown, (after receiving instructions to leave her point on the perimeter and provide protection and assistance to the canine unit), accompanied Constable Anderson and his dog for a time as they engaged in their search efforts.
• During the search of the neighbourhood, including various residential backyard areas, Constables Anderson and Arnem both were wearing grey uniforms and black vests, with front and rear markings clearly identifying the two men as police officers.
• When the further searching had proceeded for approximately 75-90 minutes with negative results, (with the police dogs apparently picking up but then losing scents), steps were initiated to terminate the search. In particular, Constable Anderson reported the negative search results to the sergeant in charge, and secured permission over the radio to end the search. At approximately 6:30pm, uniformed officers maintaining the perimeter accordingly were given permission to “clear” or leave their points. In the wake of that announcement, Constable Asanin cleared the scene almost immediately, to respond to another nearby call. Constable Arnem returned his police dog to his vehicle, (parked near the residence of the caller who reported the sighting), and Constable Anderson intended to do the same, in the company of Constable Brown. Other uniformed officers, who had participated in formation and maintenance of the containment perimeter, were still in the area but returning to their respective cruisers.
• However, while Constable Anderson and Constable Brown were walking Constable Anderson’s police dog back towards his vehicle, the dog came “into scent”; i.e., raising his nose in the air and signalling, by a change of behaviour, that someone had gone between two nearby houses, (3652 and 3660 Keenan Crescent), whose backyards Constable Anderson and his dog had not previously checked. A homeowner smoking outside a nearby residence, (at 3620 Keenan Crescent), when approached and questioned by Constables Anderson and Brown, then confirmed he had seen a male running and jumping fences in those backyard areas approximately one hour earlier, but could not confirm whether it had been a police officer or someone else. While Constable Brown remained to take further information from that homeowner, Constable Anderson decided to check the two backyards with his police dog, proceeding first into the area behind 3652 Keenan Crescent.
• After entering the backyard of 3652 Keenan Crescent, Constable Anderson’s police service dog once again exhibited changes of behaviour and signs indicating its detection of a human scent in the area. Indeed, the changes in behaviour were so dramatic, with the dog running back and forth, at the end of its then 15- foot leash, in front of a large and thick hedgerow of cedar trees, (approximately 7-8 feet tall, closing in the rear of that backyard area), that Constable Anderson thought someone might be hiding there. Constable Anderson therefore shouted, in a loud voice, “Peel Police Canine Unit! Anybody out there, call out to me or you will get bit!” When there was no response, Constable Anderson proceeded to manually “clear” the hedgerow. He did so by poking into it with his flashlight, as it was still light outside but the sun was starting to go down. Continuing to search the same backyard with his dog, Constable Anderson then noticed apparently fresh “running shoe” footprints on a recently poured and otherwise clean white concrete pad or deck.
• Constable Arnem, without his police dog, then joined Constable Anderson and his police dog in the backyard of 3652 Keenan Crescent, where Constable Anderson advised Constable Arnem about Constable Anderson’s dog being in scent, his clearing of the cedar hedgerow and the footprints he had discovered. The two officers then had further discussions about the apparently damp, fresh and muddy footprints, which seemed to be headed in a westbound direction, towards the backyard of 3660 Keenan Crescent.
• During that exchange between the two officers, Constable Anderson’s police dog remained excited, apparently still trying to “work the backyard for scent”, and pulling strongly towards the relatively low chain-link fence, (approximately 4-5 feet high), separating the back yard areas of 3652 Keenan crescent and 3660 Keenan Crescent to the west. Constable Anderson and his police dog therefore scaled that fence, and proceeded into the latter’s adjacent backyard to continue their search. Constable Anderson was uncertain, but thought Constable Arnem had gone over the fence into the backyard of 3660 Keenan Crescent at approximately the same time, and perhaps even immediately before. However, Constable Anderson admittedly was focused primarily on his dog at that point, and Constable Arnem independently testified, (accurately in my view), that he did not immediately accompany Constable Anderson and his dog in going over the fence, but instead remained initially in the backyard of 3652 Keenan Crescent to carry out a further search of that property, looking to see if the maker of the apparently fresh footprints possibly had discarded any items there. At the time, dusk was approaching, but there was still remaining daylight to facilitate such a search.
• While in the backyard of 3660 Keenan Crescent, with his police dog still showing signs of being “in scent” there, Constable Anderson then heard a loud noise or “bang”; i.e., the lid of a large garbage/recycling bin being slammed open, which in turn led to Mr Hird’s arrest. In particular:
  • The noise came from the area between the houses at 3652 and 3660 Keenan Crescent.
  • Initially not knowing what the sound was, and with his police dog initially still being restrained on its 15 foot leash, Constable Anderson turned to look down the area between the houses, towards the source of the noise. He then saw Mr Hird, standing inside and attempting to exit one of a number of large recycling or garbage bins, (approximately 2 feet by 2 feet side and several feet high), located to the side of the house at 3660 Keenan Crescent. The bins were situated towards the front of the house but still inside the same relatively low chain-link fence enclosing the side and backyard areas of the property. The area in which the bins were situated was illuminated by the remaining daylight, and by the street lighting towards the front of the house, which by then had activated. At the time, Constable Anderson was approximately 30-35 feet away from the relevant bin and Mr Hird; i.e., a 20-25 foot length along the side of the house, and a further 10 feet or so beyond that. Constable Anderson’s police dog was in-between, at the end of its 15 foot leash, near the rear corner of the house at 3660 Keenan Crescent. From Mr Hird’s body language, (e.g., rapidly turning his head back and forth, looking away from Constable Anderson and his dog, checking the nearby exit areas, and apparently looking for ways to escape by quickly scaling the nearby section of chain-link fence and gate), it was clear to Constable Anderson that Mr Hird intended to flee. Constable Anderson therefore issued another challenge, shouting “Peel police canine unit, don’t run!”
  • Despite that warning, to which Mr Hird made no verbal response, Mr Hird then attempted to flee by exiting the bin, (albeit not gracefully, as the bin fell over), and by starting to run towards the nearby section of chain-link fence and gate leading to the front of the property and street beyond. At that point, (after Mr Hird had exited the bin, and scrambled on the ground to reach the fence gate area), Constable Anderson felt he had insufficient time to close the gap between himself and Mr Hird before Mr Hird would clear the fence, and Constable Anderson therefore released his police dog to apprehend Mr Hird. Running along the side of the house at 3660 Keenan Crescent, the police dog quickly closed the distance between itself and Mr Hird. From Constable Anderson’s perspective at the time, his dog then seemed to “collide” with or “shoulder check” the back of Mr Hird’s leg area at or about knee level, as Mr Hird was attempting to get over the fence gate, causing Mr Hird to fall to the ground.
  • By the time Constable Anderson also was able to close the distance and personally approach Mr Hird and the police dog, Mr Hird generally was in a seated position with his back leaning against the gate while still squirming and flailing around on the ground, kicking at and fighting with the dog, which finally had apprehended Mr Hird by the left upper arm. Constable Anderson repeatedly emphasized that the scene was “very hectic”, with his police dog’s body interposed between himself and Mr Hird, such that Constable Anderson had an obstructed view of precisely what was happening. However, he recalled Mr Hird quickly hiding his hands as Constable Anderson was reaching in to pull the police dog away.
  • For his part, Constable Arnem, from his location in the backyard of 3652 Keenan Crescent, initially could not see directly to the area between the houses from where a loud noise had come. However, having heard a loud noise and Constable Anderson’s subsequent “police canine” challenge, Constable Arnem quickly ran to scale the low fence into the backyard of 3660 Keenan Crescent, at which point he was able to see the area between the houses, near the relevant garbage bin. By that time, Constable Arnem also could see that Anderson’s police dog had apprehended Mr Hird by his left arm, near a garbage bin lying on its side. Constable Arnem also could see that Mr Hird was wearing a “dark hoodie” and “grills” on his front teeth, in accordance with the description of the suspect for whom the police were searching.
  • While these events were occurring, either Constable Anderson or Constable Arnem made a radio call, at approximately 6:43pm, requesting uniformed officers to come to the described location to provide assistance, as “they” had located the male suspect for whom the police had been searching.[^7] Constables Asanin and Brown were among the uniformed officers who then proceeded to the relevant location, in response to that call for assistance.
  • In the meantime, as Constable Arnem was the immediately available “hands free” officer on site at the time, he moved in to take physical control of Mr Hird as Constable Anderson instructed Mr Hird to stop resisting, took his police dog off Mr Hird, and took full control of the police dog by its collar, while remaining in the immediate vicinity, (approximately 2-3 feet from Mr Hird), until Mr Hird finally was restrained. Approximately 40 seconds had elapsed between delivery of Constable Anderson’s final police canine warning and the dog being removed from Mr Hird.
  • In the process, Mr Hird either moved, or was moved by Constable Arnem, to a prone position on the ground, screaming in pain without forming words. He nevertheless was also keeping his arms and hands underneath him, and still actively resisting, with movements that included kicking his feet at the nearby police dog. Constable Arnem was above Mr Hird, to his upper right side, trying to secure Mr Hird’s hands, and yelling at Mr Hird to stop resisting and show his hands. At or about the same time, Constable Anderson also was concerned about Mr Hird’s ongoing refusal to show his hands, and told Mr Hird that he needed to stop resisting and moving around, or the dog would have to be put back onto him. However, following its initial apprehension of Mr Hird, the police dog never re-engaged with Mr Hird after being pulled off Mr Hird’s arm by Constable Anderson.
  • When Mr Hird remained non-compliant, in response to Constable Arnem’s unsuccessful attempts to employ pressure point tactics, the officer succeeded in prying Mr Hird’s right arm out from under Mr Hird, and controlling that arm with a wrist lock, before putting weight onto Mr Hird’s back. Mr Hird’s left arm and hand nevertheless remained concealed underneath him. Increasingly concerned by Mr Hird’s ongoing resistance, and the possibility of Mr Hird having something dangerous in his left hand, Constable Arnem then resorted to two closed fist strikes to the left side of Mr Hird’s face. That prompted Mr Hird to stop resisting, at which point Constable Arnem was able to retrieve and secure Mr Hird’s left hand as well, finally confirming that Mr Hird was not holding anything. Using handcuffs supplied by a uniformed male officer, (one of at least two uniformed officers who by then had arrived at the location where Mr Hird was being restrained, but whose name Constable Arnem did not know or could not remember), Constable Arnem alone secured Mr Hird’s hands behind his back.
  • As soon as Mr Hird had been fully restrained and secured by Constable Arnem, (and while Mr Hird was still on his stomach with his hands cuffed behind his back), Constable Anderson immediately left with his police dog for return to his vehicle, while using his portable radio to contact dispatch and request that an ambulance be sent to the scene to attend to Mr Hird.[^8]
  • At or about the same time, Constable Arnem raised Mr Hird to his feet and walked him out from between the two houses towards the street, (Keenan Crescent), running in front of the properties. At that point, Mr Hird was turned over to Constable Asanin, who was in full uniform and arrived at the scene in his police cruiser at approximately 6:46pm. Less than five minutes had elapsed between Constable Arnem’s first sighting of Mr Hird, and Mr Hird being turned over to Constable Asanin, who then performed a search incident to arrest, (during which Mr Hird was able to stand without assistance), read Mr Hird his rights, and cautioned Mr Hird about his right to remain silent and the possibility of any statements being used against him in evidence.

[16] I pause, in the outline of my factual findings relating to the context underlying the Crown’s voluntariness application, to address the matter of Mr Hird, (in certain statements to Constable Brown and Detective McDonald, and in his testimony in the voir dire before me), putting forth a very different version of the events surrounding his arrest; a version reflected in his counsel’s cross-examination of the Peel Regional Police Service officers. In particular:

• Mr Hird alleged that his conduct on the day of his arrest was driven simply by fear of brutality by local police officers, as he had heard that police in Malton, (the relevant neighbourhood of Mississauga), “beat people up for no reason”.
• Mr Hird claimed that, after he had run from his hiding place in one recycling bin, (after being discovered by its owner), he had concealed himself in another recycling bin and fallen asleep. He said that he then awoke inside that recycling bin, with its lid still closed, to the sound of a police dog panting back and forth, and a police officer saying “Fuck it, let’s just check this one”, before the lid of the bin then was “flipped up” by one the officers.
• According to Mr Hird, one of the officers then said “Hey buddy, good morning” and “wake up”, before squirting water in Mr Hird’s face, and ordering him out of the bin. Mr Hird said that, at that point, he already was surrounded by “at least” four police officers, leaving him with “nowhere to escape”.
• Mr Hird claimed that, as he was being compliant and climbing out of the bin, he felt one of the officers then kick the bin over. Moreover, Mr Hird says that, “as [he] was falling over” onto the ground, he “just assumed the position right away”; i.e., voluntarily putting his arms behind his back.
• Mr Hird said that, despite such efforts at prompt submission and compliance, he immediately felt a “bunch of weight” fall on top of him, that he was being punched in the face repetitively, and that his head was lifted twice so that the officers could then “smash it on the ground”. He claimed that he repeatedly tried to yell that he was “not resisting”, (in response to the officers shouting “Stop resisting!”), but that the officers then kept punching him in the face so that he could “not utter another word”.
• According to Mr Hird, one of the officers then deliberately straightened and extended Mr Hird’s left arm out and to the side, so that the police dog could attack and attach to it, “going at the arm like a chew toy” while the officers were still beating him, still punching him in the face and telling him to “stop resisting”, while Mr Hird continued to scream that he was “not resisting”.
• Mr Hird asserted that, while that was going on, and he was still being beaten, the police dog then released his arm, and was trying to attack his leg, but “was not getting a good enough grip”. According to Mr Hird, at that point he could then “see a set of hands pull my pants off completely”,[^9] to facilitate the dog’s continued attack, that his shoes also were removed, and that the dog then bit his left leg, working its way from his thigh to his foot.
• Mr Hird said that, while he was still being beaten by the officers, still being told to “stop resisting”, and still saying “I’m not resisting”, the police dog then tried to bite his other foot, (i.e., his right foot), but once again was “not getting a good enough grip” before someone “took the dog off”.
• At that point, Mr Hird said, he was picked up and put against a side wall of the nearby house, while still being told to “stop resisting”, and still saying “I’m not resisting”.
• Mr Hird said Constable Arnem then turned to him, in the presence of the other officers, and said: “You wanna run from us all day you fucking nigger? This is what you get!”
• According to Mr Hird, those vindictive and racist comments were followed by Constable Arnem then asking Mr Hird “Do you know where you’re going today?” Mr Hird said he responded by saying “Yes, I guess I’m going to jail”, to which Constable Arnem alleged replied: “No, you’re going for a swim in handcuffs! Have you ever been for a swim in handcuffs before?”
• Mr Hird also claimed that, after his initial treatment at the scene by paramedics, and their indication that he should be taken to the hospital for possible stitches, Constable Arnem attempted to intervene again, saying “No, he’s coming with us”, before a police supervisor stepped in to make it clear that Mr Hird would be going to hospital in the ambulance.

[17] I frankly did not believe Mr Hird’s account concerning the manner of his arrest, and instead preferred and accepted the testimony of Constables Anderson and Arnem in that regard. I did so for reasons that included the following:

• To the extent suggestions of such misconduct were put to Constables Anderson and Arnem, they were firmly denied in a manner I found to be convincing. In certain other respects, (e.g., particular claims by Mr Hird that attending officers had not only insulted Mr Hird in a general way, but displayed overt racism by calling him a “nigger”), the particulars of such egregious and damning allegations were not put squarely to the officers, both of whom were from out of town and not easily available to be recalled as witnesses given the pressing time constraints of a jury trial. Some allegations, (e.g., of Constable Arnem intervening and attempting to prevent paramedics from taking Mr Hird to hospital), were not raised or mentioned at all during defence cross-examination. In my view, the failure to put such particular allegations squarely to each of the officers, in cross-examination, gave rise to a degree of legitimate Browne v. Dunn concern, with a corresponding degree of adverse inference concerning the merit of such allegations.
• In the time leading up to his arrest, Mr Hird apparently made no effort whatsoever to surrender himself to police in a public, visible or otherwise monitored and controlled manner; e.g., by presenting himself voluntarily to police in an open space and a non-threatening way, with other members of the public around to witness events, or by reaching out to friends, family, counsel or neighbourhood residents to assist in the making of such arrangements. Mr Hird instead simply hid himself in successive residential garbage bins, for very extended periods of time, while waiting for police searches of the area to be over. In my view, Mr Hird’s conduct was far more consistent with someone intent on completely evading detection and possible responsibility for the events leading to the police search, as opposed to someone driven by a fear of possible police brutality.
• As noted above, Mr Hird testified that four officers were surrounding him in the recycling bin when he was discovered. From a resource perspective, it seemed to me that the suggestion of four police officers moving together within an extended search perimeter, and searching the side area of a particular property together, prior to any discovery of a suspect, was unlikely and unrealistic.
• If only for reasons relating to concern for their own safety, I also thought it entirely unrealistic to think that police officers, possessed of information that a suspect previously had been concealing himself in garbage/recycling bins, but having no knowledge of whether the person they were looking for was armed and dangerous, would engage in the sort of reckless and provocative conduct described by Mr Hird; i.e., cavalierly opening the lids of bins, waking a sleeping suspect suddenly by squeezing water over him, and making provocative or taunting comments, before then initiating a chaotic and uncontrolled scene by pushing over the bin containing that suspect. Nor do I think it likely or realistic that officers would be carrying bottles of water with them in late February, (as Mr Hird’s counsel repeatedly suggested in cross-examination, and relevant officers denied), while actively engaged in searching for a concealed suspect who may have been armed and dangerous.
• For similar reasons, I thought it unrealistic that one police officer would engage in deliberate efforts to have a police dog repeatedly attack and bite areas of a struggling suspect while one or more fellow officers simultaneously were struggling to hold on to the same areas of Mr Hird’s body, and/or gratuitously remove items of Mr Hird’s clothing, to facilitate further dog bites. Not only would such conduct have exposed an officer struggling with Mr Hird to incidental biting by the police dog, but I think it obvious that painful and injurious dog bites can be inflicted without the removal of clothing, making such clothing removal efforts entirely unnecessary if the officers truly were intent on having the dog inflict pain on Mr Hird. Beyond a degree of judicial notice in that regard, (reinforced by reported cases involving dog-related injuries), I accept the testimony of Constables Arnem and Anderson, who both candidly acknowledged their belief, based on their observations, and their experience with the canine unit and police dog apprehensions, that Mr Hird would have dog-related injuries after his arrest not necessarily correlative to rips or tears in Mr Hird’s clothing, and even though such injuries may not have been visible because of Mr Hird’s clothing.[^10]
• At the same time, I do not think it unrealistic that Mr Hird, hearing sounds of police search efforts growing closer, (e.g., hearing Constable Anderson’s shouted “police canine” warnings to anyone hiding in the backyard area of 3652 Keenan Crescent, and/or nearby conversation between Constable Anderson and Constable Arnem about the apparently fresh muddy footprints found in that backyard area), would have made a decision to emerge from his most recent hiding place in an effort to relocate once again, if possible, without being captured. In particular, I think a person in Mr Hird’s position likely would have realized that there was a high probability of being discovered by the police dog, and apprehended by the police, if he simply remained where he was.
• Constable Arnem readily and proactively acknowledged, during examination in chief, his resort to increasingly forceful measures to restrain and subdue Mr Hird; measures that culminated in two closed-fist strikes to Mr Hird’s face. Constable Arnem made no attempt to deny or minimize the force employed in taking such measures; measures which, at the time, he considered necessary to end concealment of Mr Hird’s hands and ensure officer safety. In my view, the candour displayed in acknowledging the application of such force reinforced the impression that Constable Arnem was being truthful and accurate in firmly denying resort to other violent measures.
• While consistent in material particulars, the independent testimony of Constable Anderson and Constable Arnem also displayed deviations, (e.g., with Constable Arnem proactively indicating that he had struck Mr Hird in the face while Constable Anderson did not recall seeing that happen), and inconsistencies, (e.g., as to precisely where each officer was in relation to the other when a loud noise accompanied Mr Hird emerging from the second bin in which he had been hiding). Each officer similarly acknowledged having no clear memory in relation to other points; e.g., details of the exact words the other may have said while efforts were being made to pull the police dog off Mr Hird and/or restrain him, the precise time at which uniformed officers also arrived at the arrest location, and the exact location at which Mr Hird was turned over to Constable Asanin. In my view, such inconsistencies and inability to recall certain details were unsurprising in the circumstances, given the very hectic nature of the scene, and the reality that the respective focus of each officer understandably was directed towards different things in the urgent dynamics of the moment. However, such inconsistencies and failures of memory reinforced my impression that each officer was trying to provide an independent and truthful account of what happened, and correspondingly undermined defence suggestions that the officers essentially were putting forth a necessarily co-ordinated, rehearsed but fabricated account of Mr Hird’s arrest, in order to prevent disclosure of deliberate police misconduct.
• My impression in that regard similarly was reinforced by instances of the officers readily declining to rule out certain possibilities arguably favourable to Mr Hird, owing to self-identified limits to their observations. For example, while it would have been easy for Constable Arnem to deny further contact between the police dog and Mr Hird’s legs after Constable Arnem engaged in efforts to subdue Mr Hird, the officer instead testified that such further contact was a possibility. In particular, Constable Arnem said he believed the dog had remained close enough to make contact with Mr Hird’s legs, but that he simply could not say what the dog may or may not have done in that regard, as the dog and Constable Anderson were largely to his rear, while he was looking forward, and focused on what may have been in Mr Hird’s hands, while he was positioned above Mr Hird. Similarly, while Constable Arnem could have minimized the amount of force applied in striking Mr Hird, he made no effort to dispute the possibility that his closed fist blows may have been sufficient to dislodge the “grills” from Mr Hird’s mouth, although he could not see that and did not know what may have happened to the “grills”.
• At the same time, it seemed to me that Mr Hird’s account had numerous internal inconsistencies. For example:
  • Mr Hird claimed to have already woken up to the sound of a police dog and officer comments, before the lid of his recycling bin was opened, but also alleged that the officer who opened the bin then was saying “wake up” and squeezing water in his face to make that happen.
  • Mr Hird claimed that the officers were beating him in the face so repeatedly that he could not “utter a word” or say that he was “not resisting”, but also claimed that he continued to scream that he was “not resisting” throughout the alleged beating.
  • Mr Hird emphasized that he remained lying on the ground throughout the beating, trying to demonstrate compliance by putting his hands behind his back, yet also claimed he was able to see a set of hands pull his pants off completely. It seemed to me that the latter was unlikely or impossible if the former was true.
  • Mr Hird claimed that, when the police dog moved from his left leg to bite his right foot, it once again was unable to get a “good grip”, in a similar fashion to what had occurred when the dog initially was trying to bite his left leg. However, according to Mr Hird’s account, his trousers and shoes had all been removed by that point, (i.e., by the time the police dog tried to bite his right foot as well), making it difficult to understand what then would have impeded the dog’s ability to bite that right foot.
• It also seemed to me that Mr Hird inherently exaggerated his account, in unrealistic and nonsensical ways, not all of which were put to relevant witnesses to avoid an adverse inference pursuant to the rule in Brown v. Dunne. For example:
  • To underscore his ready submission to the officers, Mr Hird repeatedly emphasized that he had “assumed the position”, with his hands behind his back, as he was falling to the ground from the top of the bin. In my view, anyone in such a position naturally and inevitably would instead have been using their hands and arms to break or control their impact with the ground.
  • Mr Hird claimed that, after his pants and shoes were removed completely to facilitate biting by the police dog, his pants then were not returned to him until sometime after his arrival at 21 Division. However, if his pants were removed to facilitate biting by the dog, as he claimed, the alleged reason for their removal had passed by the time the police dog was taken off him. Moreover, Mr Hird did not mention or suggest that his shoes were similarly kept from him, and there would seem to be no logical reason why return of his pants would have been the subject of a differential delay. Furthermore, it seems to me that an accused wearing no trousers or shoes, at the end of February, while being apprehended and/or while being moved outside, to and from vehicles and buildings, and within public buildings, almost certainly would have been noted and remembered by those dealing with him, and by Constables Asanin and Brown in particular; e.g., as they accompanied Mr Hird during his visit to a public hospital, and then to 21 Division, attending and moving with him through public areas. During cross-examination, however, it was not suggested to either officer that they were complicit in removal or withholding of Mr Hird’s pants, Constable Asanin had no memory one way or the other of Mr Hird’s clothing below the waist, and I accept Constable Brown’s testimony that she remembered seeing a tear in Mr Hird’s pants while waiting with him at the hospital.
  • As noted above, Mr Hird claimed that Constable Arnem, after voluntarily turning custody of Mr Hird over to Constable Asanin, then waited in the area before trying to intervene vis-à-vis the attending paramedics, and prevent Mr Hird from being taken to hospital for treatment. It was an example of an allegation not put to Constable Arnem in cross-examination, which in my view warranted an adverse inference about the truthfulness of Mr Hird’s testimony in that regard. In any event, however, it seemed completely unrealistic to me that Constable Arnem, a member of the canine unit not normally tasked with prisoner custody, who already had quickly and voluntarily turned custody of Mr Hird over to Constable Asanin, (which Mr Hird did not dispute), would have lingered at the scene for an extended period of time, with his dog still waiting in his vehicle, to attempt any further assertion of custody and/or other intervention in the custodial arrangements for Mr Hird. Moreover, the contemporaneous time notations made by the attending officers, (long before Mr Hird provided any indication that he would be alleging that Constable Arnem had tried to prevent the paramedics from taking Mr Hird to hospital), indicated that Constable Arnem had returned to his vehicle and dog and cleared the scene entirely by 7:01pm, whereas the paramedics did not complete their assessment of Mr Hird at the scene until 7:07pm, at which point they then left in the ambulance, with Mr Hird and Constable Asanin, for the hospital.
• Finally, I note that Mr Hird’s claim of police misconduct seemed to grow with embellishment over time, which in my view also undermined the credibility of his claims. In particular:
  • While waiting in hospital with Constable Brown, Mr Hird made a complaint to her saying: “I can’t believe, on top of all this, that someone threw water in my face”. At the time, nothing was said by Mr Hird to attribute that conduct to the police, (e.g., as opposed to the possibility of such action being taken by the homeowner who discovered Mr Hird in his original hiding place), and no mention was made of any other possible police misconduct, racism or threats.
  • By the time of his police interview with Detective McDonald, Mr Hird was complaining of getting squirted with water in his face, police kicking over the garbage can in which he had been hiding, police telling him to stop resisting when he was saying that he was not resisting, the canine unit having “attacked” him, and having been “punched [him] in the face” by police. However, nothing was said about Mr Hird’s arm being held out or pants being completely removed by the police, to facilitate biting by the police dog. Similarly, no mention was made of any police officer making vindictive and racist comments, including use of the word “Nigger”. Nor was anything said about further dire police threats that Mr Hird would be taken for a "swim in handcuffs".[^11]
  • By the time of the voir dire before me, Mr Hird’s complaints had grown and developed into the extended account of extraordinary and deliberate police brutality, racism and life-endangering threats described above.

[18] While I did not accept Mr Hird’s account of his arrest and its immediate aftermath, and instead accepted that of Constables Anderson and Arnem, I had no doubt, and found, that the involvement of Constable Anderson’s police dog in the arrest, and the facial blows struck by Constable Arnem, were painful and injurious to Mr Hird. My considerations in that regard included the following:

• Although Constable Arnem was quite certain Mr Hird had not screamed any words indicating that he was “not resisting”, (a suggestion entirely at odds with the officer’s clear memory of how Mr Hird was acting at the time, in disobeying the officer’s repeated verbal commands telling Mr Hird to stop resisting and show his hands), and Constable Anderson similarly was quite confident that Mr Hird did not voice any words while being challenged or apprehended, Constable Arnem readily indicated and confirmed that Mr Hird was screaming in pain at the time of his arrest, and Constable Anderson readily acknowledged that may very well have been happening while he was focused on removing his dog from Mr Hird.
• As noted above, Constable Arnem also believed, even without direct observation of any injuries to Mr Hird, that injuries to Mr Hird’s arm would have been sustained, based on his experience with the canine unit and observations of how Constable Anderson’s police dog had seized Mr Hird by the arm. Constable Anderson similarly confirmed his belief, based on his observations, that Mr Hird definitely had sustained bite injuries to his arm.
• Significant scarring to Mr Hird’s arm, consistent with dog bites, also was quite visible to me from the bench, approximately 15 feet from the witness box in the Stratford courtroom, as Mr Hird gave his testimony during the voir dire.
• As noted above, it seemed to Constable Anderson, from his vantage point, that his dog initially had only “collided” with Mr Hird’s legs and lower areas; i.e., without bites being inflicted. For his part, Constable Arnem indicated that, after he was able to see Mr Hird, he only saw the police dog seizing Mr Hird by the arm, and that when he raised Mr Hird to his feet, he (Constable Arnem) personally did not notice any difficulties in Mr Hird rising or walking, on his own, to suggest leg injuries. However, Constable Anderson noticed, (as Constable Arnem was securing Mr Hird on the ground), that Mr Hird had damage to his trousers consistent with biting from the police dog, from which Constable Anderson inferred that Mr Hird also would have significant dog bite injuries in that area as well.
• In the course of his dealings with Mr Hird that evening, (including the medical treatment received by Mr Hird), Constable Asanin observed and noted that Mr Hird was in pain and limping, and that Mr Hird had sustained “fresh” injuries which included the following: an abrasion on Mr Hird’s left foot; scratches on his left leg; an abrasion above his left knee; and abrasions, scratches and a possible puncture on his left bicep.
• Similarly, the “Prisoner Details Report” created that evening, when Mr Hird was booked into holding cells of 21 Division, reflected and documented the following injuries: abrasions and a puncture wound to the left bicep; left thigh abrasions; and an abrasion on the left foot.
• For her part, Constable Brown also noted that, based on her observations of Mr Hird and his treatment at the hospital, Mr Hird had injuries to his leg and hand, including a dog bite on his left leg and foot.
• In my view, the testimony of Constables Anderson, Arnem, Asanin and Brown, and the photographs taken after Mr Hird’s release from custody, made it abundantly clear that the areas of Mr Hird’s body bitten by the police dog extended beyond his arm, and included significant bite injuries to Mr Hird’s left thigh and foot, as well as a relatively minor injury to Mr Hird’s right foot. In other words, although it was not immediately visible to Constable Anderson from his vantage point when he released his police dog, and the interposed dog then blocked his view of how it was engaging with Mr Hird, that the dog managed to bite Mr Hird in a number of places during the course of the ensuing collision and struggle, including bites to Mr Hird’s left leg and feet, before finally seizing Mr Hird by the arm.
• The photographs taken after Mr Hird’s release from custody also showed injuries to the left side of Mr Hird’s face, consistent with the blows described by Constable Arnem.[^12]
• It was not disputed that Mr Hird’s treating physician or physicians at the hospital objectively felt that his injuries would legitimately generate pain warranting not only a supply of “Tylenol 3” pain medication, but an injection of morphine.

[19] Having completed that extended diversion into Mr Hird’s account of his arrest, and why I did not believe or accept it, (while nevertheless finding that the circumstances of his arrest resulted in his receipt of very painful injuries), I now return to a continued outline of my factual findings relating to the context underlying the Crown’s voluntariness application.

[20] In particular, underlying events subsequent to Mr Hird’s arrest included the following:

• Upon taking custody of Mr Hird from Constable Arnem, Constable Asanin placed Mr Hird in or close to Constable Asanin’s nearby police cruiser, and advised Mr Hird that he was under arrest for dangerous operation of a motor vehicle and failure to remain at the scene of an accident. Mr Hird responded that he understood, and confirmed his name and date of birth.
• At approximately 6:53pm that evening, (i.e., still on February 28, 2016), an ambulance arrived on scene with paramedics, who began assessing and treating Mr Hird’s injuries at the scene while Constable Asanin remained with him. Mr Hird was able to walk the short distance to the ambulance on his own, albeit with Constable Asanin holding his arm to maintain custody. Constable Asanin confirmed that, during that period of initial assessment and treatment, Mr Hird was clearly in pain from his injuries, but nevertheless appropriately responsive in his verbal interaction with the paramedics. Constable Asanin also testified that, at some point before or during the assessment process, Mr Hird’s handcuff restraints would have been repositioned from the rear to the front, in order to facilitate assessment and treatment, and to reduce any injury-related shoulder pain to Mr Hird.[^13]
• The paramedics completed their initial assessment and treatment of Mr Hird at approximately 7:07pm, at which time they and their ambulance left for the Brampton Civil Hospital, with Mr Hird in the rear of the vehicle on a stretcher and Constable Asanin remaining beside him. Acting on her sergeant’s instructions, Constable Brown followed the ambulance in Constable Asanin’s police cruiser, leaving her own more distant cruiser at the scene.
• While en route to the hospital, Constable Asanin advised Mr Hird, at approximately 7:08pm, of all the outstanding charges against him, including those outlined in the Stratford-based warrant. Constable Asanin then read Mr Hird his rights, and provided a standard caution about Mr Hird’s right to silence and the possibility of any statements by Mr Hird being used against him in evidence. Mr Hird repeatedly indicated that he understood his legal rights, and also specified the legal counsel of choice whom he wished to contact. Mr Hird also confirmed his understanding of the caution provided by Constable Asanin. When asked if he wished to say anything in relation to the charges, despite the caution he had just received, (and without Constable Asanin making any threats or promises to induce a statement), Mr Hird chose to indicate, in relation to the Peel-related charges, that he had borrowed the relevant vehicle from someone at an after-hours party, that the steering had locked up, and that he thereafter ran and hid in successive garbage cans because he was fearful of the police. However, Mr Hird said nothing about the Stratford-based charges giving rise to this proceeding.
• The ambulance arrived at the Brampton Civil Hospital at approximately 7:22pm, at which time Mr Hird, accompanied by Constables Asanin and Brown, was taken on a wheeled stretcher or gurney into the emergency department and assessed by a triage nurse. Mr Hird nevertheless then was not seen for cleaning of his wounds, and then cleared by medical personnel, until 8:45pm, after which there was a further wait until Mr Hird received prescribed medication for his pain, including an immediate injection of an unknown quantity of morphine, as well as a supply of “Tylenol 3” medication, none of which was taken immediately. In the result, Mr Hird was not formally discharged from the hospital until approximately 9:38pm. While waiting at the hospital, in the custody of Constables Asanin and Brown:
  • Mr Hird did not sleep.
  • Mr Hird was complaining about pain from his injuries, (including indications that his foot in particular was quite sore), but still was able to joke somewhat back and forth with Constable Asanin about “impressing girls”, and carry on casual and responsive conversation on topics generally unrelated to the charges he was facing, (although Constable Brown recalled Mr Hird saying, apparently in relation to the Stratford-based charges, “I’ve never even been there, I don’t understand”).
  • Mr Hird made no complaints about his handcuff restraints.
  • Mr Hird did not request or require an opportunity to use the toilet.
  • Mr Hird was provided with water, (when he accepted Constable Brown’s offer to get some), but no food.
  • At one point, Mr Hird was required to walk between his wheeled stretcher and a hospital bed, which he did with some obvious pain and a pronounced limp, and by jumping on and off the two beds with one foot, but without any stumbles or falls, and without Mr Hird requesting a wheelchair or other assistance. During that transfer, Constable Asanin once again held Mr Hird’s arm, not to support Mr Hird but to maintain custody.
• During the hospital wait, Mr Hird also was advised by Constable Brown, (at approximately 8:10pm, shortly after Constable Brown’s receipt of a telephone call and instruction from another officer at Division 21), that Mr Hird was being charged with the additional offence of receiving property obtained by crime. Because of the corresponding change in Mr Hird’s legal jeopardy, Constable Brown once again read Mr Hird his legal rights, (including his rights to counsel), as well as the standard caution about Mr Hird’s right to silence and the possibility of any statements being used against him in evidence. In response, Mr Hird repeatedly confirmed his understanding of what Constable Brown was saying, adding that he would speak to his lawyer later. Despite the officer’s embarking on a repetition of the standard caution, Mr Hird also chose to interrupt and offer statements in relation to the Peel-based charges, indicating that he had “just borrowed a buddy’s car to impress a girl, and had no idea it was stolen”. When Officer Brown insisted on completing the caution, Mr Hird again confirmed his understanding of its meaning.
• Following Mr Hird’s discharge from hospital, Constables Asanin and Brown left the treating area at approximately 9:42pm, and walked Mr Hird to Constable Asanin’s cruiser, with Mr Hird again walking on his own, albeit with a “hobble” or “bit of a hop”, while the officers opened doors and Constable Asanin again held onto Mr Hird’s arm to maintain custody.[^14] The two officers then left the hospital with Mr Hird at approximately 9:54pm, with Constable Brown driving. They proceeded directly in the police cruiser to 21 Division, arriving there a short time later, at approximately 10:02pm. Mr Hird was then brought into the cells area of the building, limping and/or “hopping” on one foot. He then went through the booking process; a process overseen by Officer in Charge (OIC) Aaron Cook[^15], and which included creation of the Peel Regional Police “Prisoner Details Report” mentioned above. The report confirmed that Mr Hird arrived at the holding cells with his aforesaid supply of “Tylenol 3” pain medication, which was to be taken in 80mg doses “as required”.
• During or immediately after completion of the booking process at 21 Division, Mr Hird was put in telephone contact with his lawyer of choice. Custody of Mr Hird then was formally turned over to the OIC of the 21 Division holding cells.
• At approximately 11:00pm, (i.e., about an hour after Mr Hird’s arrival at 21 Division on February 28, 2016), Mr Hird was taken from his holding cell to an interview room in the same building, with everything happening in the room being video recorded. In that regard:
  • The video recording showed Mr Hird initially being shown into the room for a 10 minute wait, by himself, before Detective McDonald entered the room for the first time to begin a formal police interview. In particular, the recording showed Mr Hird entering the room limping, and in obvious pain, before sitting and putting his down on the room’s table after being left alone. After a few minutes, Mr Hird drew another chair closer to the table to serve as an elevation for his apparently injured leg, while gasping repeatedly in apparent pain, before putting his head back down on the table, with little movement, for several more minutes until Detective McDonald enters the room. It was difficult to tell, from watching the video during this initial waiting period, whether Mr Hird was awake or sleeping at times.
  • At approximately 11:10pm, Detective McDonald entered the video room, and embarked on a formal interview that lasted approximately 27 minutes, (including a 5 minute interval where Detective McDonald once again left Mr Hird alone in the room for a time). Noteworthy aspects of the interview included the following:
    • Mr Hird knew Detective MacDonald was a police officer, (as Mr Hird himself acknowledged and confirmed during the course of cross-examination on the voir dire).
    • Substantively, the focus of the interview was on the Peel-based charges; i.e., possession of stolen property, dangerous operation of a motor vehicle, and failure to remain at the scene of an accident.[^16] There was only a passing reference to the Stratford-based warrant, and Mr Hird’s awareness of that, which took place towards the end of the interview as an explanation for why Mr Hird was going to be taken to Stratford.[^17]
    • Throughout the interview, Mr Hird repeatedly exhibited behaviour suggesting he was tired and in pain. He frequently put his head down on the room’s table, remaining still for extended periods. When moving, he repeatedly rubbed his elevated leg, and quite audibly moaned and gasped from time to time.
    • Mr Hird made reference to falling asleep, in one or more of the garbage cans in which he had been hiding, for an unknown period of time.[^18]
    • Mr Hird and Detective MacDonald both made repeated references to Mr Hird’s injuries, and the pain he apparently was suffering.[^19]
    • References also were made to Mr Hird’s desire for his pain medication, as Mr Hird felt the morphine he received at the hospital was wearing off, and that he accordingly did not feel able to continue with the interview. Such comments led to the aforesaid 5 minute break in the interview, with Detective MacDonald making inquiries of the cell officers, and explaining to Mr Hird that the pain medication was being held with Mr Hird’s property by the cell officers, who would need to review the prescription with a view to providing pain medication to Mr Hird after the interview had been concluded.[^20] However, the interview then continued.
    • Despite such indications of pain and discomfort, Mr Hird also clearly was aware of his right to silence. Not only was that right repeated expressly by Detective MacDonald at the beginning of the interview, (along with a secondary caution that any indications to the contrary by other officers were to be disregarded), all of which he understood,[^21] but Mr Hird repeatedly and expressly asserted his right to silence at various times, including references to advice his lawyer had given in that regard and the anticipated arrival of his lawyer.[^22]
    • Moreover, notwithstanding Mr Hird’s awareness of his right to silence and assertion of that right, he chose to make certain statements, and offer certain exculpatory explanations for his conduct, (e.g., as to why he was operating a vehicle without knowing it was stolen and why he fled and hid himself after the accident), while declining to answer other questions, (e.g., as to who else was in the vehicle with him).[^23] As noted above, Mr Hird also gave an account of his arrest, albeit brief and somewhat perfunctory, alleging fear of gratuitous brutality by Malton police, and corresponding misconduct by the officers involved in his arrest.[^24]
  • Detective MacDonald confirmed that all of his interactions with Mr Hird were displayed on the video-recording, as it was the first and only time he met with Mr Hird.
  • Detective MacDonald also confirmed that he had no knowledge of Mr Hird having any sleep, or receiving any food or medication, during his time at 21 Division.
• Before or during Detective MacDonald’s interview, arrangements were made between the Peel Regional Police Service and the Stratford Police Service to transfer Mr Hird from Mississauga to Stratford, in order to address the charges underlying the Stratford-based warrant giving rise to this proceeding. In particular, the two police services agreed that Mr Hird would be transferred at a point between the two communities, near the intersection of Highway 401 and “the Guelph Line” in Aberfoyle, Ontario.
• To effect that transfer, Constables Coughlin and Otten were assigned to travel together to Aberfoyle, on behalf of the Stratford Police Service, to take custody of Mr Hird. The two officers left Stratford for that purpose at approximately 11:13pm, on Sunday, February 28, 2016, travelling in the same police cruiser, with Constable Coughlin driving and Constable Otten in the front passenger seat.
• Steps taken by the Peel Regional Police Service, to effect the contemplated transfer, involved Mr Hird once again being turned over to Constables Asanin and Brown, who assumed custody of Mr Hird at approximately 12:04am on Monday, February 29, 2016. In particular, Mr Hird was handcuffed to the front and placed in the rear of a police cruiser for the journey to Aberfoyle, with Constable Asanin driving and Constable Brown sitting in the front passenger seat.[^25] Constables Asanin and Brown both confirmed there were no statements or requests made by or to Mr Hird, or any pain complaints made by Mr Hird, during the ensuing drive to Aberfoyle. Constables Asanin thought Mr Hird slept for “a portion” of the journey, but just had a general memory of that, (without any recollection of specific movements or positions of Mr Hird in the rear of the vehicle, or seeing Mr Hird with his eyes closed), and candidly indicated that his memory or impression of Mr Hird sleeping might be mistaken. I preferred and accept the testimony of Constable Brown, who confirmed that she looked back at Mr Hird “quite a few times”, noting that he remained upright, with his eyes initially open “some of the time”, but generally was quiet and had his eyes closed “most of the time”, (including the “four or five times” she looked back at Mr Hird towards the end of the journey to Aberfoyle), as it clearly “had been a long day for him”.
• Constables Coughlin and Otten from the Stratford Police Service, both in full uniform with police markings, arrived at the arranged prisoner transfer point, (the parking lot of a gas station and restaurant in Aberfoyle), at approximately 12:08am or 12:10am on February 29, 2016, and waited there for the arrival of the Peel Regional police officers transporting Mr Hird. The call dispatching the two officers to Aberfoyle to pick up Mr Hird already had informed them that Mr Hird had been injured by a dog bite during the course of his arrest.
• Approximately half an hour later, (at 12:40am or 12:45am), Constables Asanin and Brown arrived at the agreed transfer point with Mr Hird. Their vehicle pulled up alongside the Stratford police vehicle, approximately 1-2 car widths apart. All four officers and Mr Hird then exited their respective vehicles. In particular, Mr Hird was removed from the rear of the Peel police vehicle. Without any visible injuries, bleeding or other difficulties noted by the Stratford officers, Mr Hird walked, escorted under custody but otherwise on his own, the relatively short distance from one vehicle to the other. In doing so, he paused or was paused at a point between the vehicles for a formal transfer of custody and a switching of handcuffs; i.e., whereby the cuffs previously applied by the Peel Regional Police Service officers were replaced by others applied in the same fashion by the police officers from Stratford. At that point, (approximately 12:45am), Constable Coughlin formally assumed custody of Mr Hird, and transferred him to the rear of the Stratford vehicle before speaking further with the Peel Regional officers.[^26] During that brief conversation, Constable Otten recorded the badge information of the Peel Regional officers, while the Peel Regional officers provided their contact details, a brief account of why the Peel Regional Police Service had been looking for Mr Hird, and a contact number for Mr Hird’s counsel of choice. The Peel Regional officers also turned over Mr Hird’s personal belongings, including Mr Hird’s supply of “Tylenol 3” medication.[^27] In that regard, the Peel Regional officers confirmed to Constable Coughlin that hospital staff had provided the supply of medication while clearing Mr Hird in relation to his dog bite injuries.
• Constable Coughlin then re-entered the Stratford police vehicle, where, at approximately 12:47am the same morning, and in the presence of Constable Otten, Constable Coughlin provided Mr Hird with a further notebook recitation of Mr Hird’s legal rights, along with a standard scripted caution, (which included indications that Mr Hird was not required to say anything, and that anything he did say could be noted and used against him in evidence), as well as an indication that Mr Hird was wanted on an Ontario-wide warrant that would be shown to him when he arrived in Stratford. Mr Hird responded with an express indication that he understood his rights and specified his counsel of choice, but then said nothing further.
• At approximately 12:49am the same morning, Constables Coughlin and Otten, (with Constable Coughlin driving, Constable Otten in the front passenger seat and Mr Hird seated in the rear of the Stratford police vehicle), then departed with Mr Hird for Stratford. No stops were requested by Mr Hird, and none were made en route. Apart from Constable Otten asking Mr Hird from time to time if he was “okay” in the back seat, (as per the officer’s usual practice), and receiving no responses to the contrary, there was no further discussion between the officers and Mr Hird. In particular, Mr Hird did not request any food or drink, and did not raise any concerns about his injuries or other medical concerns. In particular, he did not request any of his medication, (which the Stratford police officers kept with them in the front of the vehicle), and none was provided during the trip. Mr Hird laid down in the back seat during the trip, and may have been sleeping.[^28]
• At approximately 1:38am or 1:39am the same morning, Constables Coughlin and Otten arrived with Mr Hird at the headquarters of the Stratford Police Service, where they were met by Sergeant Burrows, wearing a standard police uniform, in the building’s vehicle sally port.[^29] Mr Hird was able to walk up stairs leading from the sally port and into the building, (and later to his holding cell), without requiring any support or assistance, and without any notable limp or indications of pain.

[21] I pause again, in the outline of my findings of fact underlying the Crown’s voluntariness application, to address a further suggestion, by Mr Hird, of inappropriate police conduct upon his arrival in Stratford; conduct that was said to have made him fearful of the Stratford police as well.

[22] In particular, Mr Hird alleged that, as he arrived at Stratford and was being led into the police building by Constables Coughlin and Otten, another officer met them at or near the stairs, saw Mr Hird having difficulty walking, and asked, “What happened to this guy? Old school interrogation tactics?”, to which one or more of his escorting officers said “No, no, Peel got to him first”, prompting all the officers to “chuckle about it”.

[23] However, having regard to all the evidence, I did not accept that such comments were made, and instead inferred and concluded that Mr Hird fabricated his account of such comments to suggest a basis for fearing members of the Stratford Police Service. My considerations in that regard included the following:

• As noted above, the officer who met Mr Hird and the two officers escorting him, (Constables Coughlin and Otten), as they arrived in the sally port garage of Stratford Police headquarters building, and watched as Mr Hird was being led up the stairs from the garage to the floor of the building on which the holding cells are situated, was Sergeant Burrows. Not only was that the testimony of Sergeant Burrows, which I accepted, but there was no evidence to suggest that any Stratford police officers, other than Sergeant Burrows, Constable Coughlin and Constable Otten were present at the Stratford Police headquarters building when Mr Hird arrived there in the early morning hours of February 29, 2016. To the contrary, the Stratford Police Service is relatively small in size, and Sergeant Burrows emphasized in his testimony, which I again accepted, that he personally created and filled in the “Prisoner Booking & Property” sheet for Mr Hird that night, (although that normally was done by arresting officers), as the sergeant had “run short” of officers, and needed to get Constables Coughlin and Otten back on the road.
• Sergeant Burrows denied any recollection of any such remarks as those alleged by Mr Hird, and the making of such comments also was firmly and convincingly denied by Constable Coughlin. Both officers struck me as being entirely candid, credible and matter of fact, and I accepted their testimony in that regard.
• The making of such remarks also effectively was denied by Constable Otten, another credible and candid witness, who did not have the suggestion put to him expressly, but testified more generally that there was no discussion of Mr Hird’s condition as he initially was processed and taken to his holding cell.
• Sergeant Burrows already knew of Mr Hird’s injuries and their cause long before Mr Hird arrived in Stratford. In particular, Sergeant Burrows testified, and I accepted, that when members of the Peel Regional Police Service contacted the sergeant to advise that Mr Hird had been apprehended, and to request the making of transport arrangements, they also advised Sergeant Burrows that Mr Hird “had been involved with their canine unit and had been bitten”. That unchallenged testimony was confirmed by the independent and similarly unchallenged testimony of Constable Coughlin, who indicated that information about Mr Hird having been bitten by a Peel Regional police dog was shared when he and Constable Otten were dispatched to Aberfoyle, for the contemplated transfer of Mr Hird. In the circumstances, when Mr Hird arrived in Stratford, and was making his way under escort up the sally port stairs and into the building, there accordingly was no need for Sergeant Burrows to make any verbal inquiry about how Mr Hird may have been injured, let alone an inquiry coupled with overt speculation that the injuries were inflicted by police interrogation rather than a dog bite.

[24] Returning to the outline of my findings of fact underlying the Crown’s voluntariness application, events after Mr Hird’s arrival in Stratford included the following:

• During the process of booking Mr Hird into the Stratford holding cells, (and as documented in the “Prisoner Booking & Property” form created at the time), Sergeant Burrows asked Mr Hird if he required any medical attention or first aid, and Mr Hird declined the offer. Mr Hird raised no other concerns at the time, and remained polite and co-operative.
• At approximately 1:46am that same Monday morning, Mr Hird was then escorted by Constables Coughlin and Otten into an individual holding cell at the Stratford Police Service headquarters, by himself, to await bail processing. The holding cell in question had no furnishings, apart from a toilet and a fixed metal or cement bunk without padding. Mr Hird’s “Tylenol 3” medication was left with the officer in charge, (Sergeant Burrows), in an evidence bag.[^30]
• At 1:45am, and thereafter at each half hour on the half hour, from 2:00am to 6:00am, Sergeant Burrows then physically went back to the holding cell to check on Mr Hird, (in addition to watching video monitors of the holding cell in the meantime), to see that Mr Hird was safe. In his testimony, Sergeant Burrows initially indicated a belief that Mr Hird was provided with a blanket and slept, but then clarified that that he had no specific memory one way or the other of Mr Hird sleeping or having a blanket.
• Starting at 6:30am, after the officer in charge shift change, (which took place at approximately 6:15am), regular checks on Mr Hird, at 30 minute intervals, then were carried out by Staff Sergeant Jordan.[^31] The latter saw Mr Hird lying under a blanket, and apparently sleeping, during such checks. At no time did Mr Hird make any direct or indirect requests of Staff Sergeant Jordan, apart from a possible request for his “Tylenol 3” medication shortly before it was administered at 9:00am that morning, (as noted below).
• At approximately 7:35am, Mr Hird was provided with a breakfast meal, (consisting of an egg muffin, an orange juice and possibly a “hashbrown”), obtained from a McDonald’s restaurant. In that regard, I pause to note that the said breakfast seems to have been the first proper food Mr Hird had received for at least 25 hours. In particular:
  • Police calls relating to the accident giving rise to Peel Regional Police searching for Mr Hird seem to have begun before 6:00am on Sunday, February 28, 2016.
  • From the time of the accident until his apprehension by Constables Anderson and Arnem, shortly before 7pm that Sunday evening, Mr Hird was a fugitive running between and hiding in garbage and recycling bins for a very extended period of time, without any realistic opportunity to obtain any proper food.
  • There was no evidence to indicate or suggest that Mr Hird received any food during the period of his detention by the Peel Regional Police Service. In that regard, Constables Asanin and Brown did not recall Mr Hird receiving any food at any point while he was in their custody, (although one or both officers would have been present to permit and/or participate in any such food arrangements)[^32], and Constable Asanin indicated that, based on his knowledge of the timing of “food runs” made for those in the holding cells of 21 Division, Mr Hird was unlikely to have received any food during his time there. That belief is consistent with the “Prisoner Details Report”, which records cell check information under “All maintenance entries”, but contains no mention of Mr Hird being fed. Detective MacDonald also confirmed that he had no knowledge of Mr Hird being given any food.
  • There also was no evidence to suggest any stops to obtain food, or for any other reason, as Mr Hird was being transported from Mississauga to Aberfoyle, or from Aberfoyle to the holding cells in Stratford.
  • The “Prisoner Booking & Property” sheet, created and maintained while Mr Hird was being detained in the Stratford holding cells, indicated no meals apart from the feeding that took place at 7:35am. In that regard, Sergeant Burrows emphasized that food or water would have been provided to Mr Hird before then, if requested, but Mr Hird made no such requests.
• At approximately 8:00am, Mr Hird was removed from his holding cell by Constable Weller, (who serves as the identification officer for the Stratford Police Service), and was taken a short distance across the hall to an identification room to be weighed, measured in relation to height, photographed, and fingerprinted. Mr Hird then was returned by Constable Weller to his holding cell.
• At 8:39am, Mr Hird had his first contact with Detective McGregor, the Stratford police detective in charge of the investigation into this matter. Detective McGregor once again advised Mr Hird of the charges he was facing, and then read Mr Hird his rights and a caution, (about the right to silence and the possibility of statements by Mr Hird being used in evidence against him), both in the standard police notebook format. Mr Hird repeatedly indicated his understanding of his rights and the further caution he had received. He also indicated his desire to speak once again with specified legal counsel.
• From approximately 8:42am to 8:58am, Detective McGregor parted from Mr Hird as efforts were made to again put Mr Hird in telephone contact with his counsel of choice.
• At 8:58am, Detective McGregor resumed contact with Mr Hird, who requested some of his “Tylenol 3” medication. Detective McGregor conveyed the request to Staff Sergeant Jordan, and obtained approval to provide some of that medication to Mr Hird.
• At approximately 9:00am, Detective McGregor then provided Mr Hird with some of that Tylenol 3 pain control medication. In that regard, I pause to note that seemed to have been the first medication received by Mr Hird since his departure from the Brampton Civil Hospital approximately 11 hours earlier. In particular:
  • Constable Asanin confirmed that he provided no medication to Mr Hird while Mr Hird was in his custody, and Constable Brown provided a similar confirmation that she also provided no medication to Mr Hird.
  • Although Detective MacDonald informed the officer in charge of the cells that Mr Hird was in pain and requesting medication, and understood that the officer would be reviewing the prescription on the medication with a view to administering it accordingly, following completion of Detective MacDonald’s interview of Mr Hird, Detective MacDonald candidly acknowledged he had no knowledge of that having been done.
  • While the “Prisoner Details Report” prepared by the Peel Regional Police contained a heading and space for information relating to “Medications Provided”, no entries were made there.
  • There was no evidence of any medication being provided to Mr Hird during his transfer from Aberfoyle to Stratford.
  • During his testimony on the voir dire, Mr Hird was quite sure that he did not receive any Tylenol 3 before his arrival in Stratford.
  • The “Prisoner Booking & Property” document created by the Stratford Police Service, to document information and developments relating to Mr Hird’s detention in Stratford’s holding cells, contained only one entry relating to medication, indicating that Tylenol 3 was given to Mr Hird at “0900” on February 29, 2016.[^33]
• Between 9am and 9:20am, Mr Hird was left alone in an interview room, in the same Stratford Police Service headquarters building, to again speak with his counsel of choice by telephone.
• Detective McGregor, having been notified that Mr Hird had finished speaking with his counsel of choice, re-entered the relevant interview room at 9:23am to prepare Mr Hird for relocation to another interview room, located in a separate Stratford police building situated a relatively short distance away, on the other side of the police parking lot.[^34] In particular, Mr Hird was searched and handcuffed to the front, before being led by Detective McGregor out of the Stratford Police Headquarters building, at 9:28am, across the parking lot, to arrive in the other building’s interview room one minute later, at 9:29am. During the course of the walk, (less than 100 meters and including 5-10 stairs and a curb), Mr Hird was limping and being escorted by Detective McGregor, but otherwise was able to walk by himself without being supported[^35], and made no complaints in that regard to Detective McGregor.
• At 9:29am, on February 29, 2016, Detective McGregor embarked on the formal police interview of Mr Hird giving rise to the statements that were the subject of the Crown’s mid-trial voluntariness application and resulting voir dire before me. The interview lasted approximately 35 minutes, including a 2 minute interval towards the start of the interview, and another 2 minute interval towards the end of the interview, when Detective McGregor left Mr Hird alone in the interview room before returning. Noteworthy aspects of the interview include the following:
  • Mr Hird knew Detective McGregor was a police officer, (as Mr Hird himself acknowledged and confirmed during the course of cross-examination on the voir dire).
  • Throughout the interview, (including periods before questioning turned to sensitive and potentially incriminating matters), Mr Hird once again repeatedly exhibited behaviour suggesting he was in pain and tired. In that regard, he did not request any further pain medication during the course of the interview, to supplement that which he had received and taken a short time before the interview began. However, he entered the new interview room, (immediately after being walked from one police building to another), limping, wincing and gasping/sighing in apparent pain, and almost immediately, after initially being seated at a table, asked for another chair to elevate his injured leg.[^36] From that point onwards, (and as displayed by the smaller “inset” picture in the video recording, showing an overhead view of the interview room), Mr Hird effectively was laying on his side rather than sitting, with his head, left arm and upper body resting on the table. From time to time during the interview, he repeatedly clutched and/or rubbed the upper area of his left arm with his right hand. The interview continued to be punctuated by repeated groans and/or wincing by Mr Hird. He did not raise his head for very extended periods, and his eyes frequently were closed. His voice regularly failed to rise above a very soft and low volume, and at times trailed off into an almost inaudible mumble. During periods of silence, and failures by Mr Hird to respond to particular questions, it sometimes was very difficult to determine whether Mr Hird was exercising his right to silence or sleeping. At times, Detective McGregor had to repeat questions at a louder volume to elicit delayed responses from Mr Hird, even if they were just to confirm what Mr Hird already had said a short time before. In the middle of the interview, Detective McGregor effectively acknowledged that Mr Hird seemed to be in difficulty, apologizing to Mr Hird, indicating his awareness that Mr Hird “had a rough night”, and making reference to Mr Hird getting “a bit of sleep”, to which Mr Hird responded "Yeah, just a bit."[^37] Towards the end of the interview, Detective McGregor was obliged to ask Mr Hird if he was awake, and ask him to open his eyes.[^38]
  • During the course of his testimony at the voir dire, Detective McGregor confirmed making observations before the interview that Mr Hird was experiencing discomfort, (e.g., limping, wincing and requesting medication), and observations during the interview indicating that Mr Hird’s was “definitely in discomfort” and that his leg was “sore”. Detective McGregor knew that Mr Hird had been bitten by a dog, and “was sure that hurt”. Detective McGregor also confirmed his impression that Mr Hird was “definitely tired” and showing signs of fatigue during his interview. However, the detective also felt, at the time, that Mr Hird was not in need of further medical attention and not experiencing pain sufficient to delay the interview. Nor did Detective McGregor believe that Mr Hird was falling asleep. The detective instead believed that Mr Hird knew where he was and to whom he was speaking, was sufficiently alert to “operate and answer questions”, and possessed of a mind “capable of making decisions”.
  • Throughout the interview, there also were repeated indications that Mr Hird was aware of his right to silence. In that regard:
    • Detective McGregor expressly confirmed that Mr Hird had exercised his right to legal counsel;[^39]
    • The detective also once again advised Mr Hird of his right to remain silent, and provided both a primary and secondary caution; i.e., advising Mr Hird that he had no obligation to speak, that anything Mr Hird said during the video-recorded interview might be used in evidence against him, and that anything to the contrary that may have been said by any other police officer was to be disregarded.[^40]
    • Mr Hird expressly confirmed his understanding of his right to silence, and the cautions given by Detective McGregor.[^41]
    • During the course of the interview, Mr Hird repeatedly made express reference to his right to silence, and/or his desire not to speak further until he met with his lawyer.[^42]
  • Notwithstanding such indications that Mr Hird was aware of his right to silence, and his intermittent assertion of that right, he made certain statements and offered certain exculpatory explanations for his conduct. For example, he confirmed that he was in Kitchener and at the relevant hotel at the time of the events giving rise to the charges in this proceeding, in a room with two other males and two women, (one black and one white), and that he had visited the Tim Horton’s restaurant close to the hotel with one of the males, but claimed that he had simply met the relevant but unknown individuals at a Kitchener club during an after-hours party, and had gone back with them to their hotel room where he drank, smoked marihuana and slept, without having sex with anyone, until he left the following morning when police arrived unexpectedly to make inquiries for unspecified reasons.[^43] I thought it fair to say that Mr Hird began making reference to his right to silence only after Detective McGregor began to confront him with photographs, and information obtained from interviews Detective McGregor had conducted in relation to other accused persons in this proceeding, indicating that the detective already knew a good deal about the individuals in question, and/or had information that Mr Hird’s associations with the individuals were more extensive than what Mr Hird was suggesting.[^44] The resulting general impression was that Mr Hird was speaking when doing so might exonerate him, but not speaking when doing so might generate demonstrable falsehoods or otherwise incriminating answers.
  • More generally, I also thought it fair to say that, when Mr Hird spoke, his comments and responses were not incoherent, but intelligible and sensibly associated with what Detective McGregor was saying. The conversation between Detective McGregor and Mr Hird generally flowed, in that sense, without any abrupt changes of topic or answers unrelated to Detective McGregor’s comments and questions.
  • Throughout the interview, Mr Hird made no requests for food, water or medication, or to terminate the interview.
• Detective McGregor’s formal police interview of Mr Hird, giving rise to the statements which were the subject of the Crown’s voluntariness application and resulting voir dire, terminated at approximately 10:04am on Monday, February 29, 2016.

[25] I already have indicated, in my above review of the underlying circumstances and my findings of fact, certain aspects of Mr Hird’s testimony that I simply did not believe or accept.

[26] Throughout my analysis described below, I nevertheless also bore in mind other aspects of Mr Hird’s testimony, which included the following:

• Mr Hird said that he “may have drifted off” to sleep while hiding in both of the garbage/recycling bins in which he was hiding, before his arrest, but he could not recall that with certainty;
• Mr Hird said that the morphine he received at the hospital had a “numbing effect” that lasted for a while, “on and off”. However, he also said that effect began to fade “after a while”, at which point he felt constant and severe pain from his injuries.
• Mr Hird said he did not sleep at all while he was at hospital, while he was being transported to 21 Division, and during his time at 21 Division.
• Mr Hird claimed that he was feeling tired, drowsy, light-headed and in pain at the time of his interview with Detective MacDonald. He said that, at the time, he was trying to be “just pleasing” to the police, and not rude, as he did not want to “anger them more than they already were for some reason”. He claimed not to trust Detective MacDonald, as the detective did not seem to care about Mr Hird’s references to police misconduct during the course of his arrest. Mr Hird also said he wanted to complete the interview as soon as possible, in order to get back to the holding cells and his pain medication.
• According to Mr Hird, he was unable to sleep at all in the rear of the police cruisers as he was being transported from Peel to the transfer point, and from the transfer point to Stratford, as he was still in significant pain and therefore did little more than try to get into a comfortable position.
• Mr Hird said that he also generally had no sleep or no “good sleep” in the holding cells at Stratford, (although he may have “drifted off” a bit), as he was uncomfortable on the brick/cement bunk and in too much pain.
• Mr Hird claimed to be experiencing a number of feelings at the time of his interview with Detective McGregor, all of which made him inclined to talk, be as polite as possible, and not anger the Stratford police, in order to get the interview over with as soon as possible. In that regard, Mr Hird’s claims included the following:
  • He said he was fearful; fear which he attributed to hearing Stratford police officers making joking references to “old school interrogation” techniques, and his ongoing thoughts of the beating he claimed to have received in Peel; a beating which, he said, had “scarred him for life”. He says he therefore did not want to anger the Stratford police.
  • Mr Hird said that, although he had been given one Tylenol 3 before the interview with Detective McGregor, he “still needed more”, as the pain was “still there” and was more severe than anything he had experienced in his life. Mr Hird nevertheless claimed to have formed an understanding, based on his experience in Peel and what was said to him there, that he would not be given any further pain medication until the interview was completed and he was returned to his cells.
  • He said he was “very, very tired”, owing to his lack of sleep. He felt sure that he had “drifted off here and there” during the course of the interview. Without being able to say how many times that had happened, he felt certain he had fallen asleep at least once. He said he just wanted the interview to be over, so that he could get back to his cell and sleep.
  • Mr Hird claimed the combined effect of these feelings on his ability to focus was that he was “there”, but the pain was there as well, such that his “head was everywhere” and his “mind all over the place”, to the point he could not really tell what he was focused on apart from his injuries.

[27] I will comment on those further assertions and claims by Mr Hird below, in the course of outlining my reasons for arriving at my decision.

General principles

[28] However, before proceeding to outline my analysis of whether or not the interview statements made by Mr Hird to Detective McGregor were voluntary in the sense required by law, I think it helpful to outline a number of general principles relating to voluntariness.

[29] I had occasion to outline those principles in the context of an earlier voluntariness application brought by the Crown in this proceeding, in advance of trial, concerning statements made by Jaiden Alexis-McLymont during the course of a related police interview conducted by Detective McGregor.[^45]

[30] As I noted then, such principles were restated and emphasized by the Supreme Court of Canada in the seminal case of R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, and have since been repeated in decisions such as R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500. They include the following:

• Statements by an accused will not be admissible if they are made under circumstances that raise a reasonable doubt as to voluntariness.
• The burden is on the prosecution to prove beyond a reasonable doubt that a statement was voluntary.
• Application of the “confessions rule” or voluntariness rule is necessarily contextual, because “hard and fast” rules cannot account for the wide variety of circumstances that may vitiate voluntariness, including sensitivity to the particularities of the accused.
• A trial judge therefore must consider all relevant factors when reviewing such statements, always keeping in mind the twin goals or objectives of protecting the rights of an accused without unduly limiting society’s need to investigate and solve crimes. However, the factors to be considered include the following:
  • i. Whether statements were induced by threats, (including but not limited to threats of violence), or promises, (including but not limited to offers of leniency, counselling, or other forms of “quid pro quo” in exchange for the accused speaking with police);
  • ii. Whether a statement was induced by a desire to escape oppressive conditions, (including but not limited to deprivation of food, clothing, water, sleep or medical attention, denial of access to counsel, and/or excessively aggressive or intimidating questioning for a prolonged period of time);
  • iii. Whether an ostensible statement by the accused was made at a time when the accused lacked “an operating mind”; a requirement which, according to the Supreme Court of Canada, “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”; and
  • iv. Whether the police used “trickery” to obtain a statement from the accused, recognizing that courts must be wary not to unduly limit police discretion, and that resort to tricks and other forms of deceit are not prohibited so long as they are not “so appalling as to shock the community”.

[31] Again, that list of factors is not exhaustive, but those are the four principal areas or situations giving rise to possible doubt concerning voluntariness identified by the Supreme Court of Canada, which therefore understandably have been the focus of subsequent decisions.

[32] I was mindful of the above principles concerning voluntariness, in approaching the Crown’s application.

[33] However, I also recognized that the voir dire relating to Mr Hird’s statements engaged additional principles, such as those emphasized by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, wherein the Supreme Court of Canada emphasized that reasonable doubt may arise in various ways; ways that are not restricted to acceptance of exculpatory testimony given by an accused. For example, in this particular case:

• It would not have been appropriate to decide this case by simply determining whether I accepted or rejected the voir dire testimony of Mr Hird, including his descriptions concerning the manner of his arrest and other circumstances surrounding the taking of his statements.
• I instead had to consider all the evidence, and decide whether I had been satisfied beyond a reasonable doubt that the statements made by Mr Hird to Detective McGregor were voluntary, in the sense required.
• In that regard, if I believed and accepted Mr Hird’s voir dire testimony, that obviously would have militated in favour of a finding that the statements in question were not voluntary.
• However, even if I did not believe and accept Mr Hird’s voir dire testimony, I was still obliged to consider whether that testimony raised a reasonable doubt in my mind, as to whether his statements to Detective McGregor were voluntary.
• Moreover, even if I did not believe Mr Hird’s voir dire testimony, and his testimony did not leave me with a reasonable doubt about the voluntariness of his statements to Detective McGregor, I was still obliged to ask myself whether, having regard to the evidence I did accept, and looking at the voir dire evidence in its totality, I was convinced beyond a reasonable doubt that the relevant statements made by Mr Hird to Detective McGregor were voluntary.

[34] At all times, I also had in mind reminders by the Supreme Court of Canada, in authorities such as R. v. Lifkus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, as to the meaning of “reasonable doubt”. In particular:

• a reasonable doubt is not an imaginary or frivolous doubt, nor one based upon sympathy or prejudice;
• to the contrary, a reasonable doubt is based on reason and common sense, which must logically be derived from the evidence or absence of evidence; and
• reasonable doubt does not involve proof to an absolute certainty, (a standard which is impossibly high), but does require a trier to be “certain” or “sure”.

Analysis

[35] With the above principles in mind, I turn to my consideration of whether the statements made by Mr Hird to Detective McGregor, in the course of the relevant police interview on the morning of February 29, 2016, were voluntary in the sense required by law.[^46]

[36] In the course of doing so, while I will address certain suggestions and concerns raised by defence counsel, at all times during the course of my analysis I did not lose sight of the fact that it was the Crown which bore the onus of proving the voluntariness of Mr Hird’s statements beyond a reasonable doubt.

[37] I also intend to address relevant considerations in an order somewhat different from that in which they were discussed in R. v. Oickle, supra, starting with the possibility of police trickery.

POLICE TRICKERY

[38] In this case, counsel representing Mr Hird did not dispute Crown counsel’s assertion that there was no police trickery in this case.

[39] To the extent necessary, however, I independently find and confirm that the evidence before me contains nothing to suggest any form of deceit or other police trickery, in relation to the relevant police interview, that would undermine voluntariness or the reliability of statements made by Mr Hird to Detective McGregor.

[40] Without limiting the generality of the foregoing, at no point during the interview did Detective McGregor mislead Mr Hird with inaccurate statements, or refer to any fabricated evidence. Certainly, in my view there was no police trickery rising to the “very high threshold”, described by the Supreme Court of Canada, of a “dirty trick” that would "shock the community".[^47]

THREATS AND PROMISES

[41] In my view, this case also involved no express, implicit or veiled coercive threats on the part of the police, or Detective McGregor in particular, to induce a statement from Mr Hird.

[42] In that regard, and without limiting the generality of the foregoing:

• I certainly accept that the possible existence and impact of such threats is not necessarily confined to what may or may not be said or done during the course of a particular police interview giving rise to statements by an accused giving rise to a voluntariness inquiry. Police conduct before a formal interview, including violence and/or threats of possible future violence, might very well give rise to an accused effectively being induced to make a statement during a subsequent interview, despite the absence of any contemporaneous threats, in order to avoid a reasonably perceived possibility of later retribution for failing to speak. However, I did not think that was the situation in this case.
• For the reasons outlined above, I did not accept that Mr Hird’s actions were motivated by fear of brutality by the Peel Regional Police Service, or that members of that police service engaged in the deliberate, vindictive and racist police misconduct alleged by Mr Hird. There certainly was violence involved in the apprehension of Hird, insofar as he was attacked and secured by a police dog, and then subjected to further force, (including efforts to secure Mr Hird’s arms and the administration of blows to Mr Hird’s face), as Constable Arnem attempted to subdue and restrain Mr Hird. In my view, however, Mr Hird knew or reasonably ought to have known that such violence and applications of force stemmed directly from his own efforts to flee and resist arrest, rather than any express or implicit threat by police to engage in that violence, or possible further violence, to induce a statement.
• For the reasons outlined above, I also did not accept that members of the Stratford Police Service engaged in any inappropriate or approving statements referring to and/or condoning possible police brutality, (e.g., “old school interrogations”), or other misconduct, that might have instilled any reasonable apprehension, on the part of Mr Hird, that he would be subjected to violence or other physical retribution by members of the Stratford Police Service if he failed to speak to Detective McGregor.
• During the course of interviewing Mr Hird, Detective McGregor treated Mr Hird with courtesy and respect. The detective questioned and spoke with the respondent in a civil manner, rarely raising his voice. During such interaction, there were no express or implicit threats of ill treatment or more punitive consequences for the accused if he failed to speak with Detective McGregor. Nor was Mr Hird ever mistreated. To the contrary:
  • the detective responded immediately and positively to Mr Hird’s request for another chair to elevate his injured leg, and proactively asked Mr Hird how his foot was later in the interview;[^48]
  • the detective repeatedly offered sympathetic comments, acknowledging that Mr Hird had a “rough night” with little sleep, and was facing a "tough day";[^49] and
  • the detective repeatedly acknowledged Mr Hird’s right to silence, indicated that he wanted to talk with Mr Hird only if he wished to speak, and noted that Mr Hird was not being rude by expressing an intention to remain silent.[^50]

[43] In this case, I accordingly found that there were no relevant threats, of an explicit or implicit nature, that may have induced any statements by Mr Hird to Detective McGregor.

[44] Nor, in my view, was there any evidence whatsoever of explicit or implicit promises of reward to Mr Hird, if he spoke with Detective McGregor. To the contrary, with the exception of Constables Arnem and Anderson, (who testified that they effectively had no conversations with Mr Hird), and the Stratford identification officer, Constable Weller, all of the remaining officers who testified were specifically asked whether they made any threats or promises to Mr Hird, to encourage or induce a statement from him, and each of their unchallenged answers in that regard was a firm “no”.

[45] On the whole, I accordingly find there was no “promised benefit…of such a nature that, when considered in light of the relationship between [Detective McGregor] and the accused, and all the surrounding circumstances of the confession, would tend to induce the accused to make an untrue statement".[^51]

[46] More generally, in my view there were no inducements, in the sense required, that would raise a reasonable doubt, either alone or conjunction with other factors, about whether the will of Mr Hird was “overborne” during his formal police interview with Detective McGregor.[^52]

OPERATING MIND

[47] As noted above, the Supreme Court of Canada has explained that the relevant “operating mind” 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".[^53]

[48] Again, despite the more extensive evidence relating to broader context, the focus of the voir dire before me was on the voluntariness of statements made by Mr Hird during the formal police interview conducted by Detective McGregor.

[49] In my view, there is no question that Mr Hird knew, at the time of the relevant interview, that Detective McGregor was a police officer. Counsel for Mr Hird did not dispute the existence of such an awareness. Moreover, as noted above, Mr Hird himself expressly acknowledged that awareness during the course of cross-examination during the voir dire.

[50] Nor, I think, is there any reasonable doubt that, at the time of the relevant interview, Mr Hird was aware that what he was saying to Detective McGregor could be used to Mr Hird’s detriment. As noted above, by the time of Mr Hird’s statements to Detective McGregor:

• Mr Hird had, on no less than five occasions since his apprehension, been advised of his right to silence and given appropriate primary and secondary cautions, (including those provided sequentially by Constable Asanin, Constable Brown, Detective MacDonald, Constable Coughlin and Detective McGregor), and on each occasion Mr Hird had indicated his understanding of those cautions.
• On two occasions following his apprehension, (including one that occurred immediately before the police interview by Detective McGregor), Mr Hird also had been provided with an opportunity to speak with his counsel of choice. The Supreme Court of Canada repeatedly has indicated that, if a detainee has exercised his right to counsel, he presumably will have been informed of his right to remain silent, and therefore his right to choose whether or not to volunteer information to the police.[^54]
• As noted above, Mr Hird repeatedly indicated, during his interviews with Detective MacDonald and Detective McGregor, that he was quite aware of his right to silence, and expressly chose to exercise that right at various points during those interviews. During both interviews, Mr Hird also expressed a concern that things said by him during the interviews would be “twisted” or “mixed up” to incriminate him.[^55]
• As also noted above, Detective McGregor expressly advised Mr Hird that everything said during his interview of Mr Hird was being made the subject of an audio and video recording.[^56]

[51] In my view, the only aspect of the “operating mind” consideration subject to the possibility of reasonable doubt, in the circumstances of this particular case, relates to whether Mr Hird had knowledge of what he was saying during the course of his interview with Detective McGregor.

[52] In that regard, I thought there were numerous indications that Mr Hird generally had the cognitive ability to know and understand what he was saying to Detective McGregor during most and perhaps all of the relevant interview. Without limiting the generality of the foregoing:

• as noted above, when Mr Hird spoke, his comments and responses generally were coherent, intelligible, and sensibly associated with what the detective was saying, without any abrupt changes of topic or unrelated answers;
• Mr Hird’s repeatedly and timely references to his right to silence suggested a person who was cognizant of the substantive directions in which the conversation was heading; and
• Mr Hird’s willingness to answer certain questions, with exculpatory remarks, while declining to address questions relating to obviously sensitive areas, suggested a person who was making conscious choices about what he was saying, and that what Mr Hird did say was voluntary.

[53] On the other hand, it seemed to me that this was a case where there were legitimate reasons for possible concern about whether, at the time of the relevant interview, Mr Hird’s cognitive abilities may have been impaired to some degree by the combined effects of pain, sleep deprivation, medication and/or lack of food.

[54] As far as pain is concerned, Mr Hird testified that the morphine he received at the hospital had a “numbing effect” that lasted for a while, “on and off”, but that the effect began to fade “after a while”, at which point he felt constant and severe pain from his injuries, up to and including the time of his interview with Detective McGregor. Mr Hird said that pain was “indescribable”, and not like any pain he previously had known.

[55] While I received no medical evidence in that regard, and my findings of various false assertions by Mr Hird made me question his truthfulness in relation to other matters, it seemed to me that various considerations made his pain complaints more realistic and credible. In that regard:

• For the reasons outlined above, I think Mr Hird unquestionably sustained injuries, during the course of his arrest, capable of generating significant and enduring pain.
• To the extent Mr Hird was required to traverse distances while largely supporting his own weight, (e.g., escorted by officers holding onto him, but without offering substantial weight bearing support), I think that inevitably would have aggravated Mr Hird’s injuries and associated pain, particularly having regard to the nature of his foot and leg injuries.
• I think it likely that the beneficial effects of the morphine Mr Hird received sometime before 9:42pm on the Sunday evening almost certainly would have dissipated into the early morning hours of Monday February 29, 2016, and that pain from Mr Hird’s injuries then would have become more pronounced.
• While Mr Hird failed to request pain medication over the course of his night in Stratford, when he was trying to get some sleep, and it may have seemed like no officer was immediately accessible, he did make that request in the morning when increased activity at the Stratford Police Service headquarters was requiring him to engage in further movement. In any event, the reality is that Mr Hird, despite his injuries, had received no medication to control his pain for a very extended period, (lasting more than 11 hours), that came to an end only shortly before his interview with Detective McGregor. Whether or not the one dose of “Tylenol 3” Mr Hird received approximately 30 minutes before the interview was sufficient to provide significant respite from Mr Hird’s pain, or had taken full effect by the time of the interview, was unclear. Certainly, in his testimony, Mr Hird claimed it had not been enough.
• At the time of the interview, Mr Hird was demonstrating marked pain behaviour, the legitimacy of which was accepted by Detective McGregor at the time and during cross-examination on the voir dire, and which also seemed genuine to me during my viewing of the video recording.
• Insofar as Mr Hird attributed his failure to request more pain medication during the interview with Detective McGregor to an understanding that medication generally was not available during police interviews, and was something only the officer in charge of holding cells could provide, the indications Mr Hird received during the course of his interview by Detective MacDonald provided at least some objective grounds for such a relief. Similar considerations arguably applied to Mr Hird’s failure to tell Detective McGregor that he could not continue with the interview because of pain, or his desire for more pain medication, as such overt indications brought a pause but not an end to Detective MacDonald’s interview.

[56] As for sleep deprivation, in my view, various considerations made Mr Hird’s complaints in that regard also seem more realistic and credible. In particular:

• Constable Brown indicated, in the course of her testimony, that the first police reports concerning the events which led to Mr Hird hiding, and the resulting searches for Mr Hird, (i.e., reports of dangerous driving, and individuals leaving the scene of the resulting accident), were received before 6:00am on February 28, 2016. In my view, that evidence, and Mr Hird’s subsequent admissions that he was driving the vehicle in question, mean that Mr Hird was awake and active in the very early morning hours of February 28, 2016. Moreover, unless Mr Hird awoke shortly before the events in question, (contrary to his other statements to police indicating attendance at an after-hours party), it seems likely that Mr Hird also had little or no sleep the night of February 27-28, 2016.
• Mr Hird then spent much of February 28, 2016, into the early evening hours of that day, running and hiding in garbage/recycling bins; circumstances obviously not conducive to restful sleep, even if he did, as he claimed, “drift off” from time to time for unknown periods while he was hiding.
• It seemed clear that, in the period immediately following his discovery and arrest, Mr Hird was not sleeping. To the contrary, he clearly would have been in pain, and was interacting with paramedics and Constable Asanin on the way to hospital.
• Mr Hird said he did not sleep at all while he was at hospital, while he was being transported to 21 Division, and during his time at 21 Division. His assertions in that regard were consistent with the testimony of Constables Asanin and Brown, (in terms of what occurred at the hospital), the transfer to 21 Division from the hospital was relatively brief, and I thought it reasonable to infer that Mr Hird was given little time to sleep at 21 Division, given the arrangements that were being made to have him processed, provided with an opportunity to speak with counsel, and interviewed in relation to the Peel-based charges, before an imminent transfer to Stratford.
• Mr Hird said he tried to make himself comfortable but generally was unable to sleep during his transfer from Mississauga to Aberfoyle, or his transfer from Aberfoyle to Stratford. In my view, that is not an incredible assertion, (despite evidence that Mr Hird may have laid down or closed his eyes from time to time), given the fresh nature of Mr Hird’s painful injuries. Moreover, certain indications from Constables Brown and Otten about what Mr Hird was doing in the successive transfer vehicles, (e.g., including indications of Mr Hird having his eyes open from time to time, sitting upright at times, and answering intermittent inquiries about whether he was okay), suggested that Mr Hird was not asleep throughout the relevant transfers. In any event, as the transfer journeys were both relatively short, (each lasting less than 50 minutes), and Mr Hird was in pain, it seemed unlikely that any sleep he did manage during the transfers was deep or restful.
• In my view, having regard to the nature of his injuries and the waning effects of his morphine injection, Mr Hird also was unlikely to have enjoyed much restful sleep on his unpadded concrete or metal bunk in the Stratford holding cells between the hours of 1:45am and his receipt of breakfast at 7:35am., after which Mr Hird seems to have been kept relatively active and therefore awake, (e.g., eating, undergoing identification procedures, engaging in steps taken to secure medication, and participating in steps taken to speak again with his legal counsel), before his interview with Detective McGregor.
• As noted above, Mr Hird was exhibiting definite signs of fatigue during that interview, which were expressly noted by Detective McGregor at the time. Similarly, the detective himself felt it appropriate to ask Mr Hird, towards the end of the interview, if he was awake, and to open his eyes.
• In my view, having regard to all the circumstances, Mr Hird clearly was very sleep-deprived at the time of his interview with Detective McGregor, and there is a very real possibility that he was on the verge of sleep, or actually falling asleep, during the course of the relevant interview.

[57] As for the possible effects of medication on Mr Hird at the time of his interview with Detective McGregor, I already have made reference to Mr Hird being given a dose of Tylenol 3 shortly before the interview; i.e., approximately 30 minutes before the interview. To the extent that medication engaged by the time of questioning, and assisted in controlling Mr Hird’s pain, I am mindful of the reality that it nevertheless also may have carried the side-effect of further drowsiness; i.e., if it was the standard “Tylenol 3” medication, (frequently referenced in personal injury actions in this court), containing codeine.

[58] As for lack of food, while there is no evidence of Mr Hird complaining of hunger, I think it a reality, (for the reasons outlined above), that he nevertheless also had received very little nourishment in the 27-28 hour period before the interview, if not longer.

[59] Despite strong indications that Mr Hird generally knew what he was saying to Detective McGregor, I think the combined effect of pain, sleep-deprivation, medication and lack of food certainly would have made it much more challenging than normal for Mr Hird to focus on what he was saying to the detective. In the circumstances, corresponding claims by Mr Hird that his “head was everywhere” at the time of the interview, with his “mind all over the place”, while he was on the verge of falling asleep and drifting off, did not seem completely far-fetched or unrealistic.

OPPRESSION

[60] In R. v. Oickle, supra, at paragraphs 58-62, the Supreme Court of Canada provided descriptions and examples of the sort of “inhumane” or “distasteful” conditions that may be created by police to create oppressive circumstances sufficient to overbear a suspect’s will to the point of making him or her doubt his or her own memory, and/or offer a “stress compliant confession” to escape such conditions. In particular, the Supreme Court offered an expressly non-exhaustive list of relevant factors in that regard, mentioned above, which included the following: “depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and aggressive, intimidating questioning for a prolonged period of time".[^57] Another possible source of oppressive conditions was said to be police use of non-existent evidence.[^58]

[61] In my view, many of the possible oppressive conditions outlined by the Supreme Court of Canada were not present in the case before me. Without limiting the generality of the foregoing:

• At all times, Mr Hird was permitted to retain and wear his original clothing. Again, for the reasons outlined above, I rejected the suggestion that police deprived Mr Hird of his trousers and/or shoes, compelling him to move outdoors and through public places without either, at the end of February.
• Mr Hird was provided with water when it was offered or requested.
• Mr Hird was provided with professional medical attention as soon as possible after sustaining his injuries, and thereafter did not indicate or suggest that he required further medical attention. Although the evidence suggests that he may have been denied further pain medication while in the custody of the Peel Regional Police Service, despite a request for such medication, all requests made by Mr Hird in that regard, during the 7-8 hour period prior to Detective McGregor’s interview, were addressed promptly by the Stratford Police Service.
• Mr Hird was provided with telephone access to his counsel of choice on at least two occasions between his apprehension and his interview with Detective McGregor.
• Detective McGregor treated Mr Hird with respect and courtesy, and conducted his questioning in a restrained and civil manner, rarely raising his voice. In my view, nothing about the interview was aggressive or intimidating.
• The entire interview conducted by Detective McGregor was relatively brief, lasting no more than 35 minutes, including two pauses lasting approximately 2 minutes each.
• There was no suggestion that Detective McGregor made any use of non-existent evidence.

[62] Moreover, for the reasons outlined in detail above, I expressly reject Mr Hird’s allegations that he was subjected to deliberate and oppressive police brutality by the members of the Peel Regional Police, and/or approving and joking references to police brutality made by members of the Stratford Police Service.

[63] However, for the reasons outlined above, I do accept that, at the time of the relevant police interview by Detective McGregor, Mr Hird was experiencing the combined effects of pain, sleep deprivation, medication and relatively little nourishment.

CONCLUSION REGARDING VOLUNTARINESS

[64] Again, a trial judge must consider all relevant factors when reviewing the voluntariness of an accused’s statements, always keeping in mind the twin goals or objectives of protecting the rights of an accused without unduly limiting society’s need to investigate and solve crimes.

[65] I also am mindful of the possibility that, despite the strength or weakness of various voluntariness factors considered individually, the combined effect of such factors might raise a reasonable doubt as to whether the particular statements of an accused were voluntary in the sense required.

[66] In this case, I thought they did.

[67] For the reasons outlined above, in my view the context of the statements made by the respondent to Detective McGregor, during the respondent’s formal police interview, involved no police trickery, or any improper threats or promises, to induce Mr Hird’s statements to the detective.

[68] However, I thought there were concerns relating to whether Mr Hird had an “operating mind” at all material times, and experienced circumstances which, in combination, might fairly be regarded as objectively oppressive, even if that was not the intention of the police.

[69] In that regard, I would not go so far as to say I believed that Mr Hird lacked an operating mind at relevant times, and/or that his independent will and ability to make a voluntary decision regarding statements to Detective McGregor were overborne by potentially oppressive factors such as significant pain and discomfort, sleep-deprivation, the effect of medication, lack of food, and/or a desire to co-operate with Detective McGregor to end the interview as soon as possible; e.g., as a prelude to obtaining further relief, rest and/or pain medication.

[70] In fact, the responsive nature of the answers Mr Hird did provide, usually in a prompt manner, made me inclined to think that his statements to Detective McGregor probably were the product of an operating mind and conscious decisions as to what information should be provided. In other words, I thought Mr Hird’s statements to Detective McGregor probably were voluntary.

[71] However, “probable” voluntariness obviously is not the applicable standard for determining whether the statements in question were voluntary in the sense required by law.

[72] The reality is that, having regard to the possible cumulative effect of all the circumstances, detailed above, (and “operating mind” and “oppression” factors in particular), I had what I considered to be a reasonable doubt in that regard.

[73] In other words, I thought the Crown had failed to prove the voluntariness of Mr Hird’s statements to Detective McGregor beyond a reasonable doubt, according to the mandated analysis. I therefore made a ruling to that effect, indicating that evidence of those statements accordingly would not be admissible at trial.

“Justice I.F. Leach”

Justice I.F. Leach

Date: October 18, 2017

Schedule “A”

Required revisions to transcript of police interview conducted by Detective McDonald on February 28, 2016

• On page 7 of 23, the fourth comment attributed to Mr Hird should not read “No verbal response.” Mr Hird did not say that. He said something, but his comment was inaudible.
• On page 8 of 23, the fourth comment attributed to Mr Hird should read “Just with some of my friends”.

Schedule “B”

Required revisions to transcript of police interview conducted by Detective McGregor on February 29, 2016

• On page 26 of 33, the sixth comment attributed to Mr Hird should read “I have no idea, sir. You guys, you, you have all the information to tell me that.”
• On page 30 of 33, the fourth comment attributed to Mr Hird should read “Uh, is Chris Chu coming here?”
• On page 30 of 33, the fifth comment attributed to Mr Hird should read “Okay, yeah.”

[^1]: The Crown did not file a formal written notice of application in that regard. However, the Crown’s intended application was addressed in pretrial scheduling and trial readiness conferences, and Crown Counsel had served and filed an associated factum and book of authorities by July 31, 2017. At the outset of the voir dire, counsel representing Mr Hird confirmed that, despite the absence of a formal written notice of an application to determine voluntariness, he and his client effectively had received ample notice of the Crown’s intended application and position via that written material.

[^2]: During the course of his testimony, Constable Anderson also drew a diagram, (marked as an exhibit), depicting the general configuration and location of houses and surrounding fixtures and other items in the area where Mr Hird was located and arrested.

[^3]: The video recording of that interview, which lasted from approximately 11:00pm to 11:37pm on February 28, 2016, was played during the course of Detective McDonald’s testimony, and also was marked as a formal numbered exhibit. While I also was provided with a suggested transcript of the interview, the parties agreed that transcript was tendered not as a formal exhibit, but to assist the court in following along with the video recording, and as an aide memoire. The transcript accordingly was marked only as a lettered exhibit for identification. I nevertheless found that the document provided a generally accurate transcription of the audible comments recorded in the video of the interview, with the exceptions and corrections noted in Schedule “A” to this endorsement. For ease of reference and greater clarity, when referring below to particular comments made by Detective McDonald or Mr Hird during the course of the interview, I intend to identify such references with more particularity by use of the relevant transcript page numbers.

[^4]: During his testimony, Constable Coughlin was taken to the “Stratford Police Service Prisoner Booking & Property” sheet completed in relation to Mr Hird, which was then marked as an exhibit. Other officers of the Stratford Police Service then were referred to the same document in the course of their testimony.

[^5]: The video recording of that interview was played during the course of Detective McGregor’s testimony, and also was marked as a formal numbered exhibit. As with the earlier interview conducted by Detective McDonald, while I also was provided with a suggested transcript of the interview conducted by Detective McGregor, the parties similarly agreed that the transcript of the latter interview also was tendered not as a formal exhibit, but to assist the court in following along with the video recording, and as an aide memoire. The transcript accordingly was marked only as a lettered exhibit for identification. I nevertheless found that the document provided a generally accurate transcription of the audible comments recorded in the video of the interview, with the exceptions and corrections noted in Schedule “B” to this endorsement. (Certain remaining portions of the recording, marked as “inaudible” by the transcriptionist, remained inaudible to me as well.) For ease of reference and greater clarity, when referring below to particular comments made by Detective McGregor or Mr Hird during the course of the interview, I intend to identify such references with more particularity by use of the relevant transcript page numbers. During the course of Detective McGregor’s testimony, reference also was made to various photographs shown to Mr Hird, by Detective McGregor, during the course of the police interview. The photographs in question, said to be of Anthony Elgin and Jaiden Alexis-McLymont, and of Mr Hird and Mr Elgin visiting a Tim Horton’s restaurant near the hotel where the underlying events took place, also were marked as formal exhibits on the voir dire.

[^6]: During the course of Mr Hird’s testimony, he referred to numerous other photographs, (said to have been taken by his mother and the mother of his child, following his interim release from custody approximately 7-8 days after his apprehension), of injuries said to have been sustained during the course of his arrest. Those additional photographs also were marked as formal exhibits on the voir dire.

[^7]: Neither Constable Anderson nor Constable Arnem was asked, during the course of his testimony, about the making of such a radio call. However, based on the undisputed evidence of Constables Asanin and Brown, (who confirmed and described hearing the call without knowing which officer made it), I find that such a radio call was made, and made by one of the two canine officers.

[^8]: That was the testimony of Constable Anderson, who said the calling of an ambulance was standard protocol for the canine unit whenever one of its dogs engaged a suspect. However, Constable Asanin also confirmed hearing the radio request for paramedics, which included an indication that treatment for dog bite injuries was required.

[^9]: According to Mr Hird, his trousers then were not returned to him until much later in the evening, after his arrival at 21 Division. He alleged that, from the time of his arrest until that point, he had been wearing only his “boxer” underwear.

[^10]: For example, Constable Arnem testified that he knew Mr Hird would have had an injury to his arm, (based on Constable Arnem’s observations of the police dog seizing Mr Hird by the arm), even though Constable Arnem could not see that injury directly because Mr Hird was wearing a dark “hoodie” in his upper body area. Constable Anderson similarly testified that, although he had no direct view of any leg injuries sustained by Mr Hird, he was confident there would be significant injuries there based on the small tearing he observed in Mr Hird’s trousers. Numerous other witnesses also were asked for their memories of what Mr Hird was wearing, and whether or not there were any noted tears or rips in his clothing, especially his trousers. Constable Asanin was able to recall and confirm the existence of some degree of tearing in Mr Hird’s shirt, but had no memory one way or the other as to the state of Mr Hird’s clothing below the waist. Constable Brown recalled there being rips of some kind in the trousers Mr Hird was wearing, but could not recall where the rips were located, and apparently recalled no tears or rips to Mr Hird’s shirt. Other witnesses, (such as Detective MacDonald, and the Stratford officers who transported Mr Hird to Stratford or received and dealt with him there), indicated they were not focused on such matters, and/or similarly had no memory one way or the other in that regard, (apart from Sergeant Burrows having a vague recollection of Mr Hird possibly having a bandage on one of his arms). Although tears and rips in clothing obviously support an inference that the police dog bit Mr Hird in those particular areas, I did not think, for the reasons I have indicated, that the absence of any such tears or rips necessarily was determinative of whether or not Mr Hird received dog-related injuries in areas of his body while those areas were covered by clothing. In any event, based on the evidence I received, I think it reasonable to infer that, to those not immediately familiar with the circumstances of Mr Hird’s arrest and how the police dog was involved in Mr Hird’s apprehension, there was nothing particularly noticeable or striking about the state of Mr Hird’s upper and lower clothing after his arrest and contact with the police dog, despite the injuries he had received.

[^11]: In the course of his testimony, Mr Hird attempted to explain his failure to mention additional aspects of alleged misconduct by the Peel Regional Police Service by emphasizing that his mind was “all over the place” at the time, and that Detective MacDonald did not seem interested in what he was saying. However, for various reasons, I did not find such explanations persuasive or convincing. At the time, Mr Hird was quite lucid and detailed in his other comments. Moreover, at other points in his testimony, Mr Hird inconsistently emphasized that, at the time, he could not stop focusing, (e.g., during his police interview with Detective McGregor many hours later), on the beating he had received from members of the Peel Regional Police Service and his resulting injuries. Furthermore, it seemed to me that, in order to elicit Detective MacDonald’s interest, Mr Hird naturally and readily would have mentioned the most egregious aspects of the alleged police beating, racism and threats, and not the more innocuous ones.

[^12]: Such facial and head injuries also were consistent with Constable Asanin’s observation, immediately after taking custody of Mr Hird, that Mr Hird’s injuries included an abrasion above his left eyebrow. Constable Brown similarly noted the existence of abrasions on Mr Hird’s head. The existence of an “abrasion above the left eyebrow” also was reflected and documented in the “Prisoner Details Report” created that evening by the Peel Regional Police Service, as noted above.

[^13]: To the extent it may be relevant, in my view, it was at that point when the handcuffs originally supplied to Constable Arnem by an unidentified uniformed officer were replaced by those belonging to Constable Asanin, (who testified that he was not involved in Mr Hird’s initial apprehension, and did not see Constable Arnem and Mr Hird emerge from between the two houses).

[^14]: Constable Brown testified, and I accepted, that the officers asked hospital staff for a wheelchair, (e.g., to make it easier for Mr Hird to get to the police cruiser), but no wheelchair was available at the time. It was suggested in cross-examination, and by Mr Hird during his testimony, that another police officer at the hospital, passing Mr Hird as he was being escorted from the hospital to a police cruiser, told Constable Asanin to let Mr Hird “suffer” by making him walk entirely his own, despite his obvious pain. In particular, Mr Hird claimed that the other male officer said: “Why are you helping him? He wanted to run before. Let him walk now.” Constables Asanin and Brown both denied that happening, and I do not believe or accept that such comments were made. In that regard, Constables Asanin and Brown both struck me as entirely straightforward, candid and credible witnesses. Moreover, in their independent testimony, each emphasized the importance of keeping a hand on Mr Hird during movement, in order to maintain formal custody, and I think it unrealistic that another police officer would have suggested that Constable Asanin do otherwise. Nor was there any evidence to support the implicit suggestion that another male officer at the hospital would have known of the particular circumstances underlying Mr Hird’s arrest.

[^15]: During the course of the voir dire, defence counsel formally confirmed that no adverse inference should be drawn from the Crown not calling Officer Cook as a witness.

[^16]: See the transcript of Detective MacDonald’s interview of Mr Hird, (“the MacDonald interview”), at pp.2-3 of 23.

[^17]: See the MacDonald interview, at p.22 of 23.

[^18]: See the MacDonald interview, at p.18 of 23.

[^19]: See, for example, the MacDonald interview, at the following pages: p.5 of 23; p.7 of 23; p.9 of 23; p.17 of 23; p.18 of 23; and p.20 of 23.

[^20]: For examples of that, see the MacDonald interview, at the following pages: p.6 of 23; pp. 9-10 of 23; p.17-18 of 23; and p.20 of 23.

[^21]: See the MacDonald interview, at page 3 of 23. During the course of cross-examination during the voir dire, Mr Hird similarly confirmed that he received the aforesaid cautions from Detective MacDonald, and understood that statements made by him during the video-recorded interview might be used against him in evidence.

[^22]: For examples of that, see the MacDonald interview, at the following pages: p.6 of 23; p.7 of 23; p.9 of 23; pp.10-11 of 23; p.14 of 23; p.17 of 23; and p.22 of 23.

[^23]: See the MacDonald interview, at the following pages: p.5 of 23; pp.11-12 of 23; p.14 of 23; p.17 of 23; and p.21 of 23.

[^24]: See the MacDonald interview, at the following pages: p.5 of 23; p.18 of 23; and p.22 of 23.

[^25]: Although Constable Asanin believed Constable Brown had been the driver on the way to Aberfoyle, while he occupied the front passenger seat, I instead preferred and accepted Constable Brown’s testimony that the reverse actually was the case for that particular drive. Constable Asanin’s indications in that regard were somewhat perfunctory and not explored in questioning, whereas Constable Brown was confident in her memory of seating positions on the way to Aberfoyle, contrasting them with her earlier driving of Constable Asanin’s cruiser to and from the hospital, (which Constable Asanin may have been recalling). Consistent with being a passenger rather than a driver, on the way from Mississauga to Aberfoyle, Constable Brown also was able to provide more detailed recollections of repeated observations made of Mr Hird at various times throughout that journey.

[^26]: While Constable Otten thought the conversation may have occurred before Mr Hird was placed in the rear of the Stratford police cruiser, I prefer and accept Constable Coughlin’s testimony that the conversation took place after Mr Hird had been firmly secured in the rear of the Stratford police vehicle. That would have been the sensible order of priorities at the time.

[^27]: Detective MacDonald confirmed that, according to the protocol followed by officers of 21 Division, detainees were not allowed to retain their own medication. It instead was retained and controlled by the officer with formal custody of the detained person, (e.g., the officer in charge of the cells), who would provide medication to detainees in accordance with the relevant prescriptions.

[^28]: Constable Coughlin believed Mr Hird slept for much of the drive, based on the fact Mr Hird apparently was lying down in the rear seat of the vehicle and therefore not visible in the vehicle’s rear view mirror. However, Constable Coughlin candidly acknowledged that he did not actually see Mr Hird sleeping, and that precise observations of Mr Hird in the rear of the vehicle generally were difficult for the officer as it was dark, the weather was poor, and Constable Coughlin was concentrating on driving safely. Constable Otten testified that he recalled Mr Hird initially sitting towards the middle of the rear seat, but added that Mr Hird then laid down in the rear seat and generally was quiet during the ride back to Stratford, without making any whimpers or groans.

[^29]: Sergeant Burrows testified that he makes a practice, as officer in charge, of meeting officers arriving with detainees “when time permits”. On the night in question, there were no other detainees in the Stratford holding cells, and the sergeant therefore went to the sally port to meet his two returning officers and Mr Hird.

[^30]: Staff Sergeant Jordan explained that such measures are taken to prevent contraband in the holding cells, and to prevent detainees from taking excess medication.

[^31]: At the time of the shift change, Sergeant Burrows briefed Staff Sergeant with information relating to Mr Hird, including indications that Mr Hird had been wanted on a Stratford warrant, was arrested by Peel Regional Police, had sustained police dog bites during the arrest, had received treatment for those injuries, and was awaiting Monday morning bail court in Stratford. There was also a discussion of arrangements to obtain a breakfast for Mr Hird, and for Mr Hird to be processed by an identification officer.

[^32]: Constable Brown emphasized that, had Mr Hird requested any food at the hospital, efforts would have been made to ask hospital staff for any extra meals that might have been available. To her knowledge, however, no such requests were made, and no such actions were taken, in relation to Mr Hird.

[^33]: During the course of cross-examination on the voir dire, Mr Hird indicated at one point that he may have received some Tylenol 3 shortly after his arrival in Stratford, before he was taken to his holding cell to sleep. However, he subsequently indicated that he was not sure when he received Tylenol 3 while in Stratford, although he remembered being given it only once. I prefer and accept the contemporaneous record of medication administration set forth in the “Prisoner Booking & Property” sheet, the accuracy of which was buttressed by the testimony of Sergeant Burrows and Staff Sergeant Jordan, which indicated that Mr Hird received Tylenol 3 only once between the time of his arrival in Stratford and the time of his police interview with Detective McGregor, and that the administration of that medication happened at or around 9am on February 29, 2016. In the course of his testimony, Staff Sergeant Jordan also confirmed that detainee medication to be taken “as needed”, (such as the Tylenol 3” in Mr Hird’s case), would be supplied by the officer in charge of the holding cells, but not given to a detainee without a request from the detainee. In their independent testimony, Sergeant Burrows, Constable Coughlin and Constable Otten recalled no requests being made by Mr Hird upon his arrival in Stratford, before he was placed in his holding cell. In cross-examination during the voir dire, Mr Hird himself said he could not recall requesting any pain medication during the hours he spent in the holding cell, after his arrival in Stratford and before his interview with Detective McGregor that morning, despite his professed discomfort and pain. (Mr Hird blamed his failure to make any such request on the absence of any Stratford officer in the immediate area of his holding cell, and an allegation that Stratford police officers would not respond “for hours” if he cried out from his cell for assistance. However, I think that particular allegation lacked merit, and revealed an inclination on Mr Hird’s part to make baseless claims of fault on the part of the police, given Mr Hird’s almost simultaneous admission that he had no memory of actually crying out for assistance at any point during his time in the Stratford holding cells.)

[^34]: Relocation to that other building’s interview room was necessitated by limitations of available technology and space constraints, as the interview facilities in the other building were set up for “scribing” by another Stratford detective observing the interview remotely by video camera, and also had sufficient space for similar remote observations to be made by attending police investigators from the Peel region.

[^35]: Mr Hird claimed, as he did in relation to earlier descriptions of moving from place to place under escort by Constables Asanin, Brown, Coughlin and Otten, that he required support from Detective McGregor as he was walking. (He claimed that, by the time he got to Stratford, he could walk no more than a few steps on his own.) I accept that, as Mr Hird being escorted from place to place after his arrest, (and through public areas in particular), he was having difficulty walking, and that an officer also likely was holding on to his arm to retain custody. That effectively may have steadied and supplied some degree of support to Mr Hird. However, I nevertheless prefer and accept the testimony from the various escorting officers, including Detective McGregor, that while Mr Hird may have been limping or having difficulty while walking under escort, he effectively was walking on his own, in the sense of supporting his own weight.

[^36]: See the transcript of Detective McGregor’s interview of Mr Hird, (“the McGregor interview”), at p.2 of 33.

[^37]: See the McGregor interview, at p.17 of 33.

[^38]: See the McGregor interview, at p.32 of 33.

[^39]: See the McGregor interview, at p.4 of 33.

[^40]: See the McGregor interview, at pp.4-6 of 33.

[^41]: See the McGregor interview, at pp.4-6 of 33. During the course of cross-examination during the voir dire, Mr Hird similarly confirmed that he received the aforesaid cautions from Detective McGregor, and understood that statements made by him during the video-recorded interview might be used against him in evidence.

[^42]: For examples, see the McGregor interview at the following pages: p.19 of 33; p.26 of 33; p. 27 of 33; p.28 of 33; p.29 of 33; p.30 of 33; and p.31 of 33.

[^43]: See the McGregor interview, at pp.7-16 of 33.

[^44]: Detective McGregor starts confronting Mr Hird with photographs at p.18 of 33 of the McGregor interview, and Mr Hird’s references to his right to silence begin shortly thereafter, at p.19 of 33 of the McGregor interview.

[^45]: See R. v. Alexis-McLymont et al., [2017] O.J. No. 4604 (S.C.J.), wherein I ruled that the relevant statements made by Mr Alexis-McLymont were voluntary.

[^46]: I note that, at two points during cross-examination on the voir dire, Mr Hird agreed that he was answering questions of his “own free will” during his interview with Detective McGregor. I nevertheless did not think those ostensibly conclusive answers about the possible voluntariness of statements, from an accused lay person, resolved the need for my independent judicial determination as to voluntariness, especially having regard to the reality that Mr Hird’s answers were given in the context of broader protestations of numerous potential concerns, including severe pain, extreme sleep-deprivation, and resulting disorientation at the time of the relevant interview.

[^47]: See Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640, at p.697; and R. v. Oickle, supra, at paragraph 66. See also R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at pp. 286-287.

[^48]: See the McGregor interview, at p.2 of 33 and p.32 of 33.

[^49]: For examples, see the McGregor interview at p.17 of 33, p.30 of 33, and p.31 of 33.

[^50]: For examples, see the following pages of the McGregor interview: p.6 of 33; p. 19 of 33; p.27 of 33; and p.30 of 33.

[^51]: With the insertion of Detective McGregor’s name, this is the articulation offered by McIntyre J.A. (as he then was) in R. v. Jackson (1977), 1977 CanLII 287 (BC CA), 34 C.C.C. (2d) 35 (B.C.C.A.), adopted by the Supreme Court of Canada in R. v. Oickle, supra, at paragraph 51, of the type of promised benefit needed to vitiate the voluntariness of a confession.

[^52]: See R. v. Oickle, supra, at paragraph 57.

[^53]: See R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, at p.936, and R. v. Oickle, supra, at paragraph 63.

[^54]: See, for example, R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at p.184; and R. v. Singh, supra, at paragraph 33.

[^55]: See, for example, the MacDonald interview at pp.10-11 of 23, and the McGregor interview at pp.27-28 of 33.

[^56]: Again, see pp.4-5 of 33 of the McGregor interview.

[^57]: R. v. Oickle, supra, at paragraph 60.

[^58]: R. v. Oickle, supra, at paragraph 61.