R. v. Clarke, 2017 ONSC 7768

COURT FILE NO.: CR-16-70000617

DATE: 20170411

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RASHID CLARKE

Respondent

Tracey Vogel, for the Applicant/Respondent

Jason Bogle, for the Respondent/Applicant

HEARD: March 27 – 31, April 3-7, 11, 2017

VOIR DIRE APPLICATIONS

A.J. O’Marra J.

[1] A blended voir dire was conducted involving several applications brought by the Crown and defence with respect to the accused’s arrest and subsequent confession to his participation in an armed robbery of a Garda armoured truck, June 19, 2014, in which one of the two armed guards was shot several times and seriously injured; and a robbery of the same armoured truck and two guards on June 5, 2014.

[2] The Crown has applied to establish that the accused’s confessions with respect to these two occurrences were made voluntarily. The accused responds that the utterances and statements should be found by the Court to be inadmissible as involuntary resulting from his being exposed to an oppressive environment and implied threats of violence which compelled him to “tell us (the police) what happened tonight”.

[3] The accused has applied to have his utterances and statements excluded pursuant to s. 24(2) of the Charter of Rights and Freedoms as a result of a violation of his s. 9 right against arbitrary detention and s. 10(a) right by not being informed promptly of the reasons for his detention and arrest, and having been denied his right to counsel under s. 10(b).

[4] Briefly, the circumstances that led to the accused’s detention and arrest are that at approximately 1:13 a.m. June 19, 2014 a Garda armoured truck with two armed guards, Greg Contardi and Jason Mamone, pulled the vehicle to the curb in front of a TD bank on Avenue Road, near Brookdale Avenue, Toronto. Mr. Contardi, the driver exited the vehicle and as he approached the front doors of the bank he was confronted by a male with a firearm and shot six times. After falling to the ground, he pulled his handgun and returned fire before collapsing. Mr. Contardi was critically injured, however survived. Mr. Mamone was locked in the armoured truck and unable to assist.

[5] The initial reports were that three black males were seen fleeing from the area proceeding westbound. The suspects were described as wearing dark track pants and hoodies and a suspect was described as having a stocky build. The information was broadcast over the police dispatch network calling on officers from a number of divisions to respond to search for fleeing suspects.

[6] Jaden Beckford the first of three accused was detained near the corner of Bathurst Street and Woburn Avenue at 1:23 a.m. by Constables Pelech and Mahmood. Initially, they saw two individuals, one wearing a red long sleeved shirt and the other all in dark clothing, both with bags walking ahead of Mr. Beckford. The officers dealt with Mr. Beckford and broadcast further information describing Mr. Clarke, wearing the red t-shirt and Mr. Nicholas Cross in dark clothing.

[7] Rashid Clarke and Nicholas Cross continued westbound and were later arrested by Constables Regnier and Censoni at the corner of Varna Drive and Cather Crescent at 1:40 a.m. On a search of Mr. Cross’ backpack a firearm was found and both were arrested at 1:41 a.m. for possession of a firearm.

[8] The accused, Rashid Clarke was initially detained for investigative purposes, and on discovery of the firearm he was formally arrested given his rights to counsel and cautioned. He was subsequently transported to 32 Division. Later that morning after being advised that he would be charged with the additional offences of armed robbery, attempted murder and other firearm related offences he was given his rights to counsel and cautioned. Then he provided a videotaped statement to the investigating officers, Detective Andrew Stinson and Detective Constable James McDonald in which he confessed his involvement in the robbery earlier that morning, as well as the earlier attempt on June 5, 2014.

Initial Detention and Arrest

[9] Constables Paul Regnier and Lorenzo Censoni were on patrol as a primary response unit in 31 Division on June 19, 2014. They had just finished a noise complaint call in the area of Keele Street and Finch Avenue when they heard a radio call at 1:19 a.m. about a robbery in progress in the area of 325 Avenue Road near Brookdale Avenue, 32 Division. An armoured truck guard had been shot and was outside the vehicle with the other guard locked inside. It was a shooting priority call, a “hotshot” requesting all available units to respond.

[10] Further information was received that three to four suspects were last seen fleeing on foot westbound on Brookdale or through an alley north of the scene. On route to the call more information was received that there had been more than five shots fired and that three male blacks were seen running across the street and westbound from the scene. A suspect was described as stocky and the suspects were wearing dark track pants and hoodies.

[11] On arrival at the scene, the officers observed a large number of emergency vehicles and determined they were not required to assist at that location. As a result their focus shifted to searching for suspects in the area.

[12] They drove through a number of streets westbound and then south to Lawrence Avenue where they proceeded west and stopped near the intersection of Bathurst Street and Lawrence Avenue. There, they received further information over the radio from a 32 Division police officer that a male black who was seen to be sweating profusely was being investigated in the area of Bathurst and Fairlawn just north of their location. Further, the officers investigating the detained individual put out other information over the radio about two other suspects last seen proceeding southbound, one wearing a red long sleeved shirt and the other in dark clothing.

[13] Earlier Constable Pelech and his partner, Constable Mahmood during their search for suspects had turned from Bathurst onto Woburn Avenue and saw two black males walking casually near the intersection. As Constable Pelech viewed them, his partner Constable Mahmood directed his attention to another male black dressed in dark clothing with a stocky build following behind the other two.

[14] They exited the cruiser and approached him noting that he was sweating profusely, breathing heavily and gasping for air. Suspecting that the individual was one of the three observed running from the scene he placed the individual, later identified as Jaden Beckford in investigative detention.

[15] Constable Pelech testified that while he initially dismissed the other two individuals who had been seen walking casually, when his attention was drawn to the third male, his proximity to the other two, and appearing to be of similar age, he believed they were a group of three and had been together. After handcuffing Mr. Beckford he put out over his radio that the other two male blacks, one wearing a red shirt and the other dark clothing were last seen walking southbound on Bathurst Street. That was the information subsequently received by Constables Regnier and Censoni.

[16] Constable Censoni who had participated with the Toronto Anti-Violence Intervention Strategy (TAVIS) unit in the past and familiar with the area known as Lawrence Heights, which was west of their position, suggested to his partner that they continue to patrol in that direction as the suspects in the initial information had been seen proceeding westbound.

[17] They proceeded slowly into the neighbourhood to search for suspects. They drove north on Varna Drive and entered into Bagot Court. After searching the area they returned to Varna Drive and continued northwest to Cather Crescent. As they turned the vehicle onto Cather Crescent they immediately saw two male blacks, one wearing a red long sleeved shirt and the other in a black top and pants. Both males were carrying bags. The male in the red shirt, later identified as Rashid Clarke had a bag across his back and the other male, later identified as Nicholas Cross had a backpack.

[18] Constable Regnier, who had been specially trained on a service weapon called a C8 rifle as part of a pilot project to be used by officers on patrol, immediately exited the scout car and pointed the rifle at the two individuals. He said he do so for no more than two to three seconds. On seeing that they had no weapons in their hands and not an immediate threat he lowered his rifle held by a sling under his right arm. He testified that he said to the male in the red shirt “hey guys I have to talk to you”.

[19] Constable Censoni advised both males that they were being detained for investigative reasons as they matched the description of some guys that they were looking for.

[20] Constable Regnier asked Mr. Clarke if he understood and noted his response as being “yeah, is that legal?” to which Regnier replied that it was and then placed Mr. Clarke’s hands to the rear and placed handcuffs on him. He conducted a pat down search for weapons incident to the gun/shooting call. Not finding anything, he placed Mr. Clarke in the rear of their scout car.

[21] Constable Regnier noted that Mr. Clarke’s clothing was soaking wet as he moved him into the rear of the scout car. His back, chest and arms of the red t-shirt were drenched in sweat. He asked him “Why are you sweating so much?” Mr. Clarke said he had been playing basketball. The officer asked him where the ball was, to which he provided no answer.

[22] Constable Regnier testified that as they reached the rear of the scout car, Constables Stewart and Gill arrived in another TAVIS unit scout car. Constable Censoni, who had dealt with the other suspect Cross, searched his backpack after turning custody of him over to Constable Stewart. Constable Censoni found a black Lacoste shirt and a handgun in the backpack. On locating the firearm he directed that both persons were to be arrested for possession of a firearm.

[23] Constable Regnier told Mr. Clarke that he was being arrested for possession of a firearm and completed the pat down search. The satchel carried by Mr. Clarke which was held on his back with a strap across his chest was entangled with his arms because of the placement of the handcuffs. Constable Regnier could find no buckle or clip and used his knife to cut the strap of the satchel to remove it from Mr. Clarke. Later, he turned the satchel over to Constable Censoni to maintain custody.

[24] Officers Gill and Stewart who had taken custody of Mr. Cross transported him to 32 Division.

[25] Mr. Clarke had been placed in the rear of Constable Regnier and Censoni’s cruiser at 1:15 a.m. The in-car camera had been activated and Constable Regnier provided Mr. Clarke with his right to counsel and cautions as recorded:

Regnier: Just got to pay attention to this part here. I am arresting you for possession of a firearm so basically a gun. Do you understand?

Clarke: Yeah.

Regnier: It is my duty to inform that you have the right to retain and instruct counsel without delay, you have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged with an offence you may apply to the Ontario Legal Aid Plan and for assistance. I can call you a phone number they will put you in contact with a legal aid duty lawyer for free legal advice right now. Do you understand?

The accused: Yeah.

Regnier: Do you wish to call a lawyer now?

The accused: No, I have no contact.

Regnier: No, what?

The accused: I have no contact of a lawyer.

Regnier: You don’t have a lawyer?

The accused: No.

Regnier: Okay. So I’m just going to give you the caution. You are charged with possession of a firearm you are not obliged to say anything unless you wish to do so but whatever you say might be given in evidence, do you understand that?

The accused: Yeah.

Censoni: How old are you young guy?

The accused: I just turned 18.

Censoni: Sorry.

The accused: 18 Sir.

Regnier: 18 okay listen up. Do you wish to say anything in answer to the charge?

The accused: Uh, sure.

Regnier: What’s that?

The accused: Not really I didn’t do anything I was just there. I left with my brethren.

Regnier: Not really.

Censoni: I didn’t do anything.

Regnier: I didn’t.

Censoni: I left with my brethren.

Regnier: Do anything I left with my brethren.

[26] At 1:53 a.m. they departed for 32 Division and arrived at 2:07 a.m. en route, Constable Regnier obtained further information from Mr. Clarke, such as his name, address, date of birth and phone numbers for the Versadex information system, which would be downloaded subsequently and available to the booking officers and investigating officers at 32 Division.

[27] Constable Regnier noted during transport that Mr. Clarke was giving off considerable body heat causing the windows of the cruiser to steam up, a circumstance he testified he had never seen before.

[28] On the in car camera video, Exhibit No. 6, Mr. Clarke can be seen in the back of the cruiser sweating and from time to time wiping moisture from his face on his shoulder.

[29] On arrival at 32 Division the officers remained with Mr. Clarke in the cruiser outside the sally port entrance awaiting their turn to enter the Division.

[30] While they waited outside of the sally port, there was a short meeting at 2:30 a.m. on arrival of Detective Stinson the lead hold-up officer and Officer Wyard, a member of the Forensic Identification service (FIS) with Constables Censoni and Regnier. Detective Stinson instructed them that no phone calls were to be permitted any of the detainees until all evidence had been collected, which included the paper bags that had been placed over the hands of the suspects at the time of their arrest to preserve the presence of any gunshot residue (GSR), as well as their clothing for testing. The paper bag which had been put over Mr. Clarke’s hands had torn and come off. It was replaced on arrival into the sally port.

[31] At 2:47 a.m. Mr. Clarke was taken into the booking hall before the Staff Sergeant as seen on Exhibit No. 7, the booking hall video. At that time, Constable Regnier advised the booking Sergeant that Mr. Clarke had been placed under arrest for unlawful possession of a firearm. He stated that Mr. Clarke had been advised of his rights to counsel and he indicated that he understood.

[32] Further, Regnier stated “he does not have a lawyer for himself. I advised him that I’ll provide him with a free duty counsel here in this station. I am continuing the arrest to prevent the continuation and repetition of the offence. Due to the nature of the offence, I am requesting a level 3 search.”

[33] The Staff Sergeant indicated that a level 3 search was appropriate, but the search would wait until the evidence had been collected. He advised Mr. Clarke that his clothing would be seized and that some work would be done with respect to his hands in collecting evidence. He further advised him that he could speak to duty counsel but not until his clothes were taken, after which he would be given replacement clothing.

[34] Regnier and Censoni escorted Mr. Clarke to CIB interview room No. 1 on the second floor of the Division. They stood by at the door until the arrival of Constable Wyard, the FIS officer at 2:53 a.m. Constable Wyard conducted the GSR sampling of the accused’s hands. On completion of the sampling she left the interview room. Then, Constable Regnier and another officer, Cohen, took each article of clothing worn by Mr. Clarke and placed them in separate bags. Mr. Clarke was given an orange jumpsuit to wear. Constable Regnier’s last contact with Mr. Clarke was after the clothing was turned over to the FIS officer at 3:22 a.m.

[35] At approximately 3:35 a.m. Detective Stinson met with the police officers who were involved in the arrests of Clarke and Cross - Constables Regnier, Censoni, Gill and Stewart. He was advised by Constable Regnier that Clarke had been arrested for possession of a firearm and given his rights to counsel. When asked if he wished to call a lawyer his response was “No, don’t have a lawyer.” After he was cautioned and asked if he wished to say anything his response was “Not really, I didn’t do anything.” The meeting with the officers finished at 3:50 a.m.

[36] Detective Stinson then met with Officers Pelech and Mahmood at 3:55 a.m. who provided information concerning the arrest of Jaden Beckford. That briefing concluded at 4:00 a.m.

[37] After making notes, at 4:15 a.m. Detective Stinson conducted a debriefing of the officer who had interviewed the other robbery victim, Jason Mamone and advised what information he had provided about the robbery and shooting.

[38] At 4:26 a.m. Stinson held another briefing in the Major Crime Unit (MCU) where he met with the other hold-up officers involved in the investigation. That meeting finished at 4:55 a.m., after which he attended with Detective Constable McDonald to introduce themselves to Jaden Beckford and to advise him that he would be taken to an interview room equipped with video equipment to speak with him.

[39] At 6:10 a.m. Mr. Clarke was interviewed by DC McDonald and Det. Stinson. He was advised that he was being charged with attempted murder, robbery while armed with a firearm and a series of firearm possession offences. He was given his rights to counsel again and re-cautioned.

Voluntariness

[40] It is the position of the accused that he made utterances and confessed to his involvement in the two robberies because he was subject to an oppressive environment and implied threats, which deprived him of his free will and compelled him to confess.

[41] Mr. Clarke claims that the oppression started:

1. From the time the assault rifle was pointed at him by Constable Regnier and being taken to the ground, which made him scared and feel intimidated.

2. He had all of his clothing removed and he was given an oversized jumper at 32 Division. He was left without shoes or socks for several hours in a “frigid” interview room, which made him feel uncomfortable.

3. He testified that he had not been given food or drink while in the interview room however, just before being taken to be videotape interviewed he was given a juice box, as can be seen on the videotape. This claim was contradicted by the statement made in his affidavit submitted on the application sworn March 30, 2017 that he was given “one sandwich and one drink” while waiting in the interview room.

4. He claimed that before being taken to the videotaped interview he heard Nicholas Cross scream out for help in agonizing and excruciating pain for ten minutes. Just after the screaming stopped, an unidentified police officer came into the room and said “You’re next, you should tell us what happened tonight”. He testified that the unidentified officer was not any of the many officers involved who testified on this voir dire or at the preliminary inquiry in this matter – Regnier, Censoni, Stewart, Gill, Weagle, McDonald, Stinson, Palermo, and Callanan. He could provide no other description of the person, other than he was a white male. He testified that he took what was said to him to mean that if he did not tell the police everything that had happened whatever had happened to Cross would happen to him.

[42] Nicholas Cross was called to testify on the voluntariness issue by defence counsel. Cross had pleaded guilty to the robberies on an agreed statement of facts and was serving 6 and a half years in prison.

[43] He testified he was in an interview room in CIB office of 32 Division after he had been arrested with Mr. Clarke. Detectives Palermo and Callanan came into the interview room and slapped him repeatedly, alternating blows. Palermo slapped him from the left side and Callanan from the right side. Detective Palermo stomped his right foot into his mid-section and private area repeatedly “like pressing a gas pedal”, which caused significant pain. Palermo kept telling him he was the “shooter”, which he denied. Further, he kept telling them to “stop, stop” and he put his hands up to protect his head but his hands would be pushed away. Then the red haired police officer, (the only red haired officer was Detective McDonald) came in and said “Beckford confessed to being the shooter”. After the officer left the room the slapping and stomping stopped. He was then taken to the videotape interview room. Before the interview started Palermo told by him to just say “yes” to everything he was asked.

[44] In reply, the Crown called Detectives Palermo and Callanan. Both officers denied the conduct alleged by Nicholas Cross. Further, Detective McDonald testified that he could not have come into the room and made such a statement about Beckford admitting to having been the shooter because he and Detective Stinson were interviewing Jaden Beckford at the same time Palermo and Callanan were interviewing Cross on videotape. Once the interview stated with Beckford he remained until the end.

[45] In terms of the timing of the interviews, Jaden Beckford was interviewed on DVD by Detectives Stinson and McDonald from 5:04 a.m. to 5:48 a.m. It is only during that interview that the police learned from Beckford that he was the shooter who injured the armoured car guard. Mr. Cross’ videotaped interview took place between 5:15 a.m. and 6:53 a.m. with Detectives Palermo and Callanan. Between 5:04 a.m. and 5:15 a.m. McDonald did not leave the interview with Beckford. Mr. Clarke’s recorded interview took place between 6:10 a.m. and 6:44 a.m. with Detectives Stinson and McDonald.

[46] All the officers involved in this matter who were in the area of the MCU and CIB offices on the second floor that morning testified on that they never heard any loud screaming coming from any interview room. If there had been they would have been obligated to have investigated. Moreover, Mr. Cross denied that he had “screamed” as Clarke testified he heard for ten minutes, just that he said in a loud voice “Stop, stop, stop, I didn’t shoot anyone” when he was being slapped.

[47] In terms of Cross’ allegations as to the treatment he said he received from Palermo and Callanan and the direction that he only answer “yes” to whatever was asked of him, I have examined the DVD statement of his interview and I find that there is 1) no evidence of him being in any form of distress, 2) no evidence such as discolouration or swelling to his face suggesting he had been slapped repeatedly, 3) he just agree or said “yes” with anything asked or said by the officers, rather, he provided considerable detail in many of his answers as to his involvement as well the actions of Beckford and Clarke in the robberies.

[48] Further, he assisted with providing details for diagrams and information as to the location of the accused prior to the robberies that could not have been known to the officers at the time of the interview.

[49] There is no demonstration of having been in pain from being “stomped”. Indeed, a number of time during the interview he gesticulates. He appears to move freely his shoulder, arms, and his body in his seat without any appearance of discomfort.

[50] I do not believe Mr. Cross’ claim to have been beaten or mistreated by the officers or that the accused heard Cross being beaten and screaming out. In the interview he participated voluntarily and provided detailed information to the officers. His demeanour and countenance during the interview belies any claim he had been abused in the manner he described.

[51] I do not believe Mr. Clarke’s assertions that he heard Cross “yell in a horrible pain” for ten minutes or that an unidentified police officer entered the room to say, “You’re next…”. In the videotaped interview of Mr. Clarke, Exhibit No. 12, there is no indicia of being fearfulness or intimidation. Further, in the caution provided to him at the outset he acknowledged that nothing was said or done to influence him in speaking with the officers. I am satisfied that he was speaking to them of his own free will.

[52] Mr. Clarke may well have been cold, nervous and tired, but the situation was not oppressive and there was nothing to even suggest in the videotaped interview that his will had been overpowered by the circumstances of his detention, arrest or the events in 32 Division prior to the videotaped interview with Detectives Stinson and McDonald.

[53] Counsel suggested in argument that because Mr. Clarke had a diagnosis of Attention Deficit and Hyper-activity Disorder (ADHD) at age 10 and it affected his ability to provide fulsome information to the officers.

[54] In the materials supplied by counsel there is reference to his cognitive and academic skills being intact. Moreover, in Mr. Clarke’s own evidence he testified to having achieved athletic and academic success in school completing Grade 12 with a B average. In the interview, he is responsive to the questions asked.

[55] There is nothing in the evidence to suggest that Mr. Clarke did not have an operating mind.

[56] On the issue of voluntariness I make the following findings of fact:

1. The accused was not exposed to an oppressive environment that compelled him to speak to the police against his will.

2. I do not accept the evidence of the accused and co-accused Nicholas Cross that there was abuse and/or actual or implied threats, nor does their evidence raise a reasonable doubt. I accept the evidence of the officers that there was no abusive conduct, promises or threats.

3. The accused was not deprived of an operating mind due to the circumstances of his arrest, detention and interview.

[57] I am satisfied beyond a reasonable doubt that the accused’s utterances and confession to the police as to his involvement in the robberies were voluntary and made of his own free will.

Section 9, Right against Arbitrary Detention

[58] The Supreme Court of Canada in R. v. Mann (2004), 2004 SCC 52, 185 C.C.C. (3rd) 308 at para. 34 held that a brief investigated detention based on “reasonable suspicion” is lawful and authorized by law:

The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or ongoing criminal offence. Reasonable grounds figures at the front end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all the circumstances, notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterford test.

[59] In this instance, I consider the dynamic situation in which the officers were involved in investigating individuals suspected of having been involved in an armoured truck robbery, where a guard had been shot several times.

[60] The initial information reported to the police was that three black males were seen to run westward toward Bathurst Avenue from the shooting scene. The suspects were reported to be wearing dark clothing and one had a stocky build. In searching side streets to the west of the shooting, Constables Pelech and Mahmood saw two individuals walking together westward on Woburn toward Bathurst, followed by a third stocky male dressed in black.

[61] On seeing the third male, who was sweaty and breathing heavily, together with his proximity to the other two males, all appearing similar in age, Constable Pelech radioed a description of the other two as possible suspects in the armed robbery to be investigated. He put out the description that one was wearing a red shirt, black pants and carried a bag over his shoulder and the other male dressed in dark clothing was also carrying a knapsack. That description was heard by Constables Regnier and Censoni. When they encountered Clarke and Cross, they matched the description as put over the radio by Constable Pelech.

[62] Constable Regnier explained, at the time they encountered them in his view the males could reasonably be considered suspects in the shooting that had occurred at approximately 1:13 a.m. because:

1. The suspects had been described as three male blacks;

2. They were looking for three suspects. The two males they encountered were together and had been described as having been in association with another suspect detained by Constables Pelech and Mahmood, who had broadcast descriptions of the two they encountered;

3. A suspect was described as stocky and the male in the red shirt in his view had a medium stocky build;

4. They were both carrying bags which could have contained concealed weapons, firearms;

5. They were outside late at night and there was no one else around at the time;

6. They were west of the scene of the shooting and had been walking in the direction of travel that the suspects were moving – westbound;

7. It had only been a short period of time since the shooting had occurred;

8. Both males appeared to be walking normally and appeared to be healthy young males able to run the distance from Avenue Road to the location where they were encountered;

9. The male in front of the two was wearing a red shirt which matched the suspect’s clothing description had recently been provided;

10. Both males were hot and sweaty as though they had been running recently.

[63] Constable Regnier noted that the male with the long red sleeved t-shirt (Clarke) had beads of sweat on his forehead and his eyes were very wide open. In his view, the subjects being sweaty reinforced his belief that they could have been running away from the scene as described by a witness. He could see that the male’s shirt was soaking wet.

[64] Constable Censoni testified that his reasonable suspicion for investigative detention of the two individuals was based on:

1. The original suspect information that three black males had been seen fleeing from the scene westbound;

2. There is no other pedestrian traffic in the area of Lawrence Heights;

3. The accused and Nicholas Cross were both black males consistent with the original dispatch information;

4. One of the accused was wearing a red shirt and black track pants consistent with the suspect information provided by the 32 Division officers, Constable Pelech and Mahmood, who had been dealing with a third suspect;

5. The accused were carrying a satchel and backpack;

6. Both males were breathing heavily, gasping, and had beads of sweat on their foreheads;

7. Nicholas Cross was wearing all black clothing consistent with the original suspect information;

8. Nicholas Cross’ eyes started to scan left and right as Censoni approached Cross giving him the impression that Cross was either going to fight or flee;

9. The accused were westbound only a short distance from the shooting location;

10. Both Clarke and Cross were in close proximity to where they had last been by the 32 Division officers (Pelech and Mahmood) believed to have been in the company of the suspect (Beckford) that they were investigating.

[65] When Cross’ knapsack was searched and Censoni discovered of the firearm. On his direction both accused were immediately placed under arrest for possession of a firearm.

[66] I am satisfied that the investigative detention and subsequent arrest of the accused for possession of the firearm found in co-accused Cross’ knapsack was lawful and not arbitrary. The officers had articulable reasonable suspicion, based on the circumstances that prevailed. There was a clear nexus between the individuals detained, Clarke and Cross and a recent offence of armed robbery.

Section 10

[67] Section 10 of the Charter of Rights and Freedoms reads in part:

Everyone has the right on arrest or detention

(a) To be informed promptly of the reasons therefore;

(b) To retain or instruct counsel without delay and to be informed of that right…

[68] Under s.10 (a) of the Charter, the accused has the right to be informed “promptly” of the reasons for the detention. It has been interpreted as being information to be provided “without delay”. Delay in communicating the right will be constitutionally tolerable in some circumstances, such as where it is established the delay is to effect officers’ safety or where the circumstances make it practically impossible to inform him or her of the right without delay (see: R. v. Doan, [2012] O.J. No. 3066 at para. 72 (SCJ)).

[69] In the circumstances of responding to a shooting call in which there were a number of perpetrators involved, prepared to use firearms, leaving a guard critically injured, the police were understandably concerned for their own safety, the safety of any persons they encountered and members of the public. Within a minute of encountering Clarke and Cross, Constable Censoni found a handgun in Cross’ knapsack. He called out immediately that he had found a gun and directed that the accused be arrested for possession of a firearm.

[70] With respect to the s. 10 (a) application, I find, based on the evidence of Regnier and Censoni, the accused and Cross were immediately informed of the reasons for their initial detention. They were told they were being investigated because they matched the description of the persons the police had been looking for. Moments after detaining them, on searching Cross’ knapsack and discovery of the firearm, they were advised immediately they were under arrest for possession of a firearm.

[71] In R. v. Suberu, [2009] SCC 33 at para. 2, the Supreme Court stated that the police duty to inform an individual of his s. 10 (b) rights are triggered from the moment the individual is detained however, without delay must be interpreted as an immediate obligation subject only to concerns for officer or public safety, or to reasonable limitations that are proscribed by law and justified under s. 1 of the Charter. Police are not obligated to comply with the obligations of s. 10 while they are legitimately and reasonably engaged in protecting themselves or members of the public (see: R. v. Grant, 2015 ONSC 1646, [2015] O.J. No. 1229 at para. 106 (SCJ). In this instance, the police were responding to a hotshot high priority call regarding a shooting, a victim was in critical condition, there were suspects at large with a firearm prepared to use it.

[72] Rights to counsel under s. 10(b) were given to the accused when it was safe to do so in the rear of the scout car at 1:51 a.m. During the intervening 9 to 10 minutes from the arrest the officer in securing the accused conducted a pat down search and removed the satchel from the accused Clarke to ensure there were no weapons contained therein. There was no undue delay in the circumstances.

[73] On camera in the scout car, Constable Regnier informed Mr. Clarke of his right to retain and instruct counsel without delay and he indicated he understood the right.

[74] In this instance, the s. 10 (b) obligation was fulfilled following the pat down search of the accused, the removal of his satchel to ensure that there were no additional weapons.

[75] The second obligation of the police after informing the accused of his right to counsel is to provide a reasonable opportunity for the accused to speak to his or her lawyer. If requested then the police are to refrain from eliciting evidence from the accused/detainee until he or she has had a reasonable opportunity to speak to a lawyer.

[76] The Supreme Court of Canada has made clear that the implementational duties of the police “are not triggered unless the detainee indicates a desire to exercise his or her right to counsel”. In R. v. Sinclair, [2010] SCC 35 at para. 27, it was observed that the implementational duties are not absolute. Absent invocation of the right to counsel and the reasonable diligence in the exercise of that right by the detainee, the police duties to provide a reasonable opportunity to consult lawyer and refrain from eliciting evidence will either not arise in the first place or will be suspended.

[77] In the police cruiser, Mr. Clarke was asked “do you wish to call a lawyer now”, to which he responded “No, I have no contact”. In that exchange Mr. Clarke did not say he wanted to contact a lawyer. It was a negative response.

[78] In responding to Constable Regnier he had not asserted the right, or as a result, curtailed the officer from asking any questions of him. The officer also told that he was not obligated to say anything but that what he did say could be used in evidence, to which he indicated he understood.

[79] Counsel for Mr. Clarke argued that his right to silence was invoked when he was asked do you wish to say anything in answer to the charge to which he responded “Uh, sure”… not really, I didn’t do anything, I was just there. I left with my brethren.” Further, when the officer asked him about his address and phone number it was and investigative inquiry and the answers evidence that the Crown intended to use against him.

[80] Constable Regnier testified that when he provided Mr. Clarke his rights to counsel when he was sitting in the back of the scout car he did not provide him the 1-800 number because he would not have been able to use it at that time, or to likely remember it. Instead, he let him know that a lawyer could be called for him at the station if he wanted to speak with one. Notwithstanding the offer of assistance by the police officer, the accused had not invoked his right to counsel thereby triggering the implementational duties of the police.

[81] In the circumstances, the officer was not obligated to refrain from asking questions to assist with identification of the accused or to obtain basic contact information about the accused. Moreover, the accused not having invoked his right to counsel by asking to speak with a lawyer cannot be said to have invoked a right to silence. In any event, his utterance, “I was just there…” was a spontaneous comment not elicited by a question. It was his choice to answer the questions about his age, date of birth, address and phone numbers, en route to 32 Division.

[82] Counsel further argued that Detective Stinson’s order that the detainees were not to be permitted any phone calls until the forensic evidence was collected violated his rights to counsel by holding him incommunicado. Firstly, in the circumstances of an ongoing investigation it was reasonable to delay contact with counsel if it had been requested in order to preserve forensic evidence, as part of the investigation. The accused’s hands had been bagged in order to prevent a loss of GSR particles if they were present. It would have been impractical, if not impossible, for the accused to speak privately with counsel prior to the removal of the paper bag and a sampling of his hands for the presence of GSR.

[83] Notwithstanding the direction given by Detective Stinson to delay any calls to counsel by the detainees, Mr. Clarke had not invoked his right to counsel, and as a result the implementational obligation with respect to him had not been triggered.

Videotaped Interview – June 19, 2014 Robbery

[84] After Detective Stinson had completed the interview with Mr. Beckford, he and DC McDonald conducted a video recorded interview with Mr. Clarke on consent. He was advised that he would face charges of attempted murder, robbery while armed with a firearm and a series of firearm possession offences. When given his rights to counsel, including his right to free advice from a Legal Aid lawyer and the 1-800 number for Legal Aid duty counsel, he confirmed that he did not wish to call a lawyer:

DC McDonald: Do you wish to call a lawyer now?

Clarke: Mmm… not at the moment.

DC McDonald: You don’t?

Clarke: No (shakes his head left to right).

[85] In viewing the videotaped statement it is clear that Mr. Clarke says “no” softly and shakes his head left to right, emphasizing his declination.

[86] In R. v. Owens 2015 ONCA 652 at para. 24, it was noted the Supreme Court has been consistent since R. v. Baig, 1987 CanLII 40 (SCC), [1987] 2 S.C.R. 537, in holding that implementation duties "are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel",(see R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 192; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 30, 33; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 23-24. Implementation obligations will arise only when detainees express a wish to exercise their right to counsel, (see R. v. Fuller, 2012 ONCA 565, 295 O.A.C. 309, at para. 17.)

[87] Absent proof of circumstances indicating that the accused did not understand his right to retain counsel when he was informed of it, the onus is on him to prove that he asked for the right, but it was denied or he was denied any opportunity to ask for it.

[88] I am satisfied that the accused understood his right to retain and instruct counsel when he was informed of it. He did not invoke the right or denied the right to exercise it. Mr. Clarke was not denied his rights to counsel under s. 10(b) of the Charter with respect to the June 19, 2014 robbery.

Videotaped Interview and the June 5, 2014 Robbery

[89] During the interview about the June 19 robbery however, Mr. Clarke was questioned about the June 5, 2014 robbery attempt. Detective Constable McDonald pointed out the similarities between the June 19 robbery and the earlier June 5, 2014 robbery he had investigated. Mr. Clarke acknowledged that he was involved in the earlier robbery attempt along with the other accused, Cross and Beckford. The interview carried on during which details of the accused’s involvement were elicited.

[90] Counsel argued that in circumstances where his jeopardy changed he should have been re-advised of his right to counsel and given the opportunity again to consider whether he wished to exercise that right.

[91] Detective Stinson, and Detective Constable McDonald both candidly acknowledged when they testified it was an error on their part not to have re-informed Mr. Clarke of his right to counsel before investigating a new offence for which he could be charged.

[92] In R. v. Evans, 1991 CanLII 98 (SCC), [1991] SCJ No. 31 at para. 47, the Supreme Court following an earlier decision in R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 SCR 138, reiterated “that there is a duty on the police to advise a detainee of his or her right to counsel a second time when new circumstances arise indicating that the accused is a suspect for a different, more serious crime than the case at the time of the first warning”.

[93] Further, McLaughlin J. (as she then was) in Evans stated at para. 48:

I should not be taken as suggesting that the police, in the course of an exploratory investigation, must reiterate the right to counsel every time that the investigation touches on a different offence. I do, however, affirm….the police must re-state the accused’s right to counsel when there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the warning.

[94] In R. v. Sinclair, 2010 SCC 35, [2010] S.C.J. No. 35 at para. 51, the Court, referring to Evans and Black, noted that to fulfill the purpose of s. 10(b) the detainee must be given a further opportunity to consult with counsel and obtain advice if the investigation takes a “new and more serious turn and his or her jeopardy changes”.

[95] In this instance, the Crown contends that the robbery attempt on June 5, 2014 was “not a significantly more serious offence” than the investigation into the attempted murder and robbery for which the earlier warning had been given. The investigation had not taken a “new and more serious turn”.

[96] The Crown relies in part on R. v. Paulin 2013 NBCA 15 in which the New Brunswick Court of Appeal at para. 28 noted that Evans and Sinclair made it clear that not every change in jeopardy will require a further opportunity to consult with counsel. The change must be fundamental and the investigation must take “a new and more serious turn”.

[97] In Evans, the accused, a youth of sub-normal mental capacity, had been arrested for possession of marijuana, however the real purpose as acknowledged by the police was to question him about the police belief that his brother was involved in two brutal murders. As questioning progressed, the accused became the suspect in the murders, and no attempt thereafter had been made to re-advise him of his right to counsel. He made incriminating statements. Subsequently he was convicted of the two first degree murders. The convictions were based almost entirely on the elicited incriminating statements. The Supreme Court held that the statements should have been excluded and as a result the convictions overturned and acquittals entered.

[98] In Paulin, the accused was arrested for possession of marijuana for the purpose of trafficking following the execution of a search warrant by police at his residence in which marijuana was found. He was given his rights to counsel before he was questioned by the arresting officer however, the officer went on to question him with respect to a large quantity of alcohol also located on the premises for which he was later charged under the Provincial Liquor Control Act.

[99] At trial, even though the Crown had elected not to proceed on the alcohol related charge, the trial judge excluded the statement with respect to the possession of marijuana charge because the officer had not reiterated his rights to counsel with respect to the alcohol related offence. The Court of Appeal overturned the acquittal and ordered a new trial because the regulatory offence could not be considered a more serious offence than an offence under the Controlled Drugs and Substances Act.

[100] The Evans and Paulin represent two extremes in terms of the circumstances relating to another offence being investigated after the initial warning. Neither of the factual circumstances are similar to those in this instance. Attempt murder and armed robbery are more serious offences than robbery itself however, robbery is still a serious offence subject to a maximum penalty of life imprisonment under the Criminal Code.

[101] In my view, in questioning Mr. Clarke about the June 5 robbery attempt there was discrete change in the investigation to a “different and unrelated offence”. Although the attempt robbery involved the same armoured truck and crew it was a different offence separated by both time and place.

[102] In Evans, the Court used the disjunctive “or” in describing the circumstances that will give rise to a re-iteration of the right to counsel by the police to an accused – “a different and unrelated offence or a more serious one”. Further, in Sinclair, the Court emphasized the change in jeopardy that the accused would face. Clearly, Mr. Clarke’s jeopardy changed significantly if he implicated himself in another robbery. The investigation took “a new and more serious turn” for Mr. Clarke at that instance. He faced a new situation for which he should have been advised of his rights to counsel and given the opportunity to either consult with counsel to obtain advice in face of new jeopardy or to decline his right and thereafter make an informed choice whether to continue to co-operate with the police investigation. Not having had that opportunity presented to him violated his s. 10(b) Charter rights.

[103] In considering whether the evidence should be excluded pursuant to s. 24(2) of the Charter and the relevant factors as set out in Regina v. Grant, 2009 SCC 32, [2009] SCJ No. 32, I find that:

(1) The breach, although unintentional on the part of the officer at that stage of the interview, was clearly careless. Having given Mr. Clarke’s rights to counsel at the outset of the interview to some extent ameliorates seriousness of the state conduct, but it was serious nonetheless. He should have had the opportunity to re-consider whether he wanted to speak with counsel in the circumstances of facing another offence, which would increase his jeopardy.

(2) The breach had a serious impact on the accused’s Charter protected interests: his right to silence and right against self-incrimination. In Regina v. Grant, supra, at para. 77, the Court stated: “The more serious the incursion on the interests the greater the risk that admission of evidence would bring the administration of justice into disrepute”.

(3) While society has an interest in the adjudication of the case on the merits, I consider the over-arching goal of trial fairness and the accused’s right against self-incrimination. The Crown’s case in this instance is not reliant on the conscripted evidence of the accused. Generally statements obtained in breach of a Charter right are excluded on the grounds that admission of that evidence would bring the administration of justice into disrepute. In these circumstances, I do not deviate from that conclusion.

[104] Considering all of the factors, on balance, the admission of the statements relating to the June 5, 2014 robbery would bring the administration of justice into disrepute. Accordingly, all references in the interview on June 19, 2014 with respect to the June 5, 2014 robbery are to be excluded pursuant to s. 24(2) of the Charter.

A.J. O’Marra J.

Released: April 11, 2017

CITATION: R. v. Clarke, 2017 ONSC 7768

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RASHID CLARKE

Respondent/Applicant

VOIR DIRE APPLICATIONS

A.J. O’Marra J.

Released: April 11, 2017