COURT FILE NO.: CR-17-0549-0000
DATE: 2018 05 18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
David Maylor and Ann-Marie Calsavara for the Crown Respondent
Respondent
- and -
TYREL NICHOLSON
Steven Hinkson for Applicant Accused
Applicant
HEARD: May 8, 2018
SECTION 7 CHARTER RULING
D.E HARRIS J.
[1] Tyrel Nicholson makes application under Section 7 and 24(2) of the Charter to exclude from evidence statements he is said to have made to an undercover officer in a cell at 22 Division in Brampton.
[2] Nicholson is being tried together with David Kawal and Devonte Rowe on a multi-count indictment charging them with offences arising out of the kidnappings of Mohammed Ibrahim and D’Onna Ellis on the evening of October 16, 2015. Nicholson himself is charged with two counts of robbery and two counts of kidnapping, both offences allegedly committed using a loaded restricted\prohibited firearm. Nicholson is also charged with attempted murder for allegedly shooting Ibrahim during the kidnapping. There is also a freestanding count against him of possession of the restricted\prohibited firearm.
[3] The allegation is that the kidnapping victims were abducted at gunpoint from their condominium in Toronto and taken to 10 Stokes Road in Brampton. Somehow, Ibrahim was able to call 911 on his cell phone. Acting Sergeant John Alwyn responded to the call. As he drove up to the Stokes Road address he was immediately shot. Kawal is alleged to be the shooter and is charged with attempt murder.
[4] Some short time afterwards, Ibrahim was shot with a 9mm semi-automatic handgun inside the garage at 10 Stokes Road where he was being held by Nicholson and another man, Christopher Osborne. It is alleged that Nicholson shot Ibrahim. He is charged with attempted murder for this act.
[5] Nicholson was arrested the morning following the incident hiding in a vehicle in the general neighbourhood of where the kidnapping victims were confined at the Stokes Road address. Christopher Osborne was arrested a short distance from the Stokes location within 20 minutes of the shootings. Osborne has pled guilty and been sentenced for robbery with a firearm, kidnapping with a firearm, aggravated assault and breach of a firearms prohibition.
[6] After Nicholson’s apprehension, he was brought to the police station and spoke to counsel. He opted to remain silent and not give a statement to the police.
[7] The police devised an undercover operation to gather incriminating statements from Nicholson to assist in the prosecution. Two undercover officers, posing as arrestees, were housed in the cells with Nicholson in the hours after his arrest.
[8] The operation was successful. Nicholson spoke extensively to the undercover officers. The prosecution seeks to tender the admissions made by Nicholson before the jury in this trial.
[9] In circumstances where a detainee exercises his right to silence after arrest, a state agent or undercover police officer can only obtain admissible utterances from him if they adhere to the restrictions developed in three leading cases from the Supreme Court of Canada on the subject: R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151; R. v. Broyles, 1991 15 (SCC), [1991] 3 S.C.R. 595 and R. v. Liew, 1999 658 (SCC), [1999] 3 S.C.R. 227 [1999] S.C.J. No. 51.
[10] The applicant Nicholson argues that the prevailing jurisprudence demonstrates that the police subverted his right to silence protected by Section 7 of the Charter and that exclusion of the ensuing evidence is mandated.
EVIDENCE ON THE SECTION 7 VOIR DIRE
[11] Sergeant Harloff has about six years of experience posing in cells as a detainee. He has a level 5 designation which means that he is at the highest level of skill and experience. Harloff is authorized to operate anywhere in the province. He testified that he has “served time” in numerous institutions. Harloff was the primary officer and the one who was designated to converse with Nicholson.
[12] P.C. Stewart, an officer with only about one year experience and playing the role for the second time, was the other officer in the cell. He had a level 1 designation at the time. Stewart was privy to the conversation between Harloff and Nicholson but did not participate for the most part.
[13] The two officers were briefed by a police handler and supplied with a criminal fact sheet. This sheet had cursory information with respect to three suspects: Osborne, Nicholson and a young offender. It had a brief overview of the alleged offences. The details given to the officers were not extensive as it is the philosophy of the police that it is better for the undercover officer to have only skeletal information about the crime. There was no direct contact with the investigatory team. The undercover officers did not know what was relevant and what was not.
[14] The crime fact sheet specified that the officers were to obtain voluntary disclosures from the suspects and try to identify other suspects. Harloff testified that if there was voluntary disclosure he was there to receive it but he would not initiate any conversation with Nicholson.
[15] The two officers were supplied with summaries of the relevant case law, including the three Supreme Court of Canada cases referred to above. The officers’ understanding was that they should be “between a ‘listening post’ and carrying a conversation.” Harloff was told not to elicit or interrogate and to avoid creating an oppressive environment. He was not body packed. His handwritten notes were made about an hour after the interaction with Nicholson.
[16] It was just Harloff and Stewart in the cell initially. The co-accused Osborne was then brought in. There was no evidence on this voir dire about what he said to the undercover officers. Some period of time after Osborne was taken out, Nicholson was brought in.
[17] Harloff testified that Nicholson was brought in by the booking officer and was wearing a blue prison paper bodysuit with a large rip in the shoulder. Nicholson promptly fell asleep, snoring loudly. He woke up after a couple of hours and immediately started to speak to Harloff. He said he was cold in the blue suit but it was warmer in the jail than it had been the night before sleeping in the woods.
[18] Harloff said that sounded like a tough night. Nicholson stated that he was looking at 20 years. Harloff replied “That’s heavy.” Nicholson replied that there were two attempt murders, two kidnappings and a cop got shot and someone else. Nicholson then said that he had “fucked up and was going to wear this one.”
[19] Harloff mentioned that another guy had been with him in the bullpen wearing a blue suit and that they got along. Harloff testified that this was a generic comment referring to Osborne. Nicholson then asked about the guy and Harloff said that he was a black guy, that he was cool and they talked about growing up in Scarborough.
[20] Nicholson then asked what the guy’s name was and Harloff said that it was Chris. Harloff’s evidence was that Nicholson smiled, seemed excited and then asked a lot of questions about Chris. Nicholson said that Chris did the thing as well and was only looking at seven years if he did the right thing. Nicholson said about himself that he was looking to lay down for 20 years i.e. was going to go to jail for 20 years.
[21] Harloff agreed that Nicholson’s attitude changed markedly once it became clear that it was Osborne who had been in the cell with Harloff. Nicholson became more animated.
[22] Nicholson then went on to talk about what had occurred after he fled the scene after the shooting. He had been hiding in the woods to avoid capture. Nicholson talked about his adventures hiding and crawling in the mud. Nicholson said he had seen an alligator. The two laughed. Nicholson joked that it was like Arnold Schwarzenegger’s film Predator. He described spending the night in a car and being arrested by the police in the morning.
[23] The two had a wide-ranging conversation. Nicholson said that he was most concerned about a gunshot residue test that had been done upon arrest. Nicholson also said that he had left his jacket in the location of the crime. He said he did not shoot the cop but that he had touched both guns. He did not mention shooting Ibrahim for which he is charged with attempt murder.
[24] Nicholson asked Harloff whether they could get fingerprints off a trigger of a gun and Harloff sloughed off the question and said he did not know. Nicholson said that he was not getting bail. He was concerned that his mother would hear about the case on the news. Nicholson went into quite a bit of personal history including his days as a goalie in Triple A hockey.
[25] Nicholson said he was once arrested at the Mississauga Gate Hotel and held for a number of days. He had 3 ½ ounces of cocaine “tucked into his ass.” When he was released he went to “shit it out.” The toilet he was using had an auto flush mechanism which to his shock and surprise promptly flushed the drugs out of his reach. The drugs were gone forever.
[26] Nicholson also went on to say that he had a good lawyer but he had taken all his money. Harloff used the word “jovial” to describe Nicholson’s mood. Harloff said that his involvement in the conversation was relatively sparse.
[27] In cross-examination, Harloff agreed that his notes were to capture the essence of the conversation; they were not verbatim. For the most part, Harloff’s part of the conversation was not recorded in his notes.
[28] Harloff agreed that his role was not to initiate nor to stimulate. He agreed that it would be inappropriate to talk about the co-accused as that would be eliciting evidence.
[29] With respect to the blue suit and the reference to Osborne, Harloff said that this was a part of the natural flow of conversation. They had been talking about Nicholson’s blue suit so it followed from that.
[30] Harloff disagreed that this was to stimulate conversation about Osborne, the person wearing the blue suit. He agreed that his reference was not random but what he meant by this was only that it was connected with the subject matter of Nicholson’s blue suit which had been talked about just before. It was pointed out by Mr. Hinkson that Harloff could have lied about the name of the guy in the blue suit to steer clear of talk of the co-accused. Harloff did not consider doing that.
THE CASE LAW
[31] In Herbert, Broyles and Liew the Supreme Court forged a middle position between permitting the state to do no more than passively listen—the “listening post” metaphor—and permitting forceful and persistent questioning.
[32] The concurring positions of Justice Sopinka and Justice Wilson in Hebert would have required the state to remain entirely passive and would have virtually ended the undercover officer in the cell law enforcement strategy. Justice McLachlin as she then was, writing for seven judges relatively early in the life of the Charter, after a lengthy, wide-ranging analysis, came to the conclusion that the value to be protected under the Charter was a detainee’s right to freely choose whether to surrender his right to silence or not.
[33] To give effect to this, Justice McLachlin formulated a standard to examine the question of whether the free choice to speak or remain silent has been subverted. The police cannot “actively elicit” information and cannot use subterfuge to “interrogate.” Furthermore, Justice McLachlin adopted the American case law which holds that a police informant can be used after detention if he or she “[does not] take active and intentional steps to elicit a confession.” (paras. 133-134).
[34] It would have been easy to implement an “everything is permitted” approach or a total bar to any inroad into the right to silence. But articulating a line in between the two extremes was bound to have some vagueness to it and be more difficult to apply.
[35] Justice Iacobucci in Broyles attempted to give additional guidance, building on the prohibition of active elicitation formulated in Hebert. Justice Iacobucci said the overarching question was the existence of a causal connection between the undercover officer’s conduct and the making of the statement by the accused. If there is, Section 7 has been violated. A judge must examine the nature of the exchange and ask whether the state actor actively sought out information to render the exchange the “functional equivalent of an interrogation.”
[36] Furthermore, it must be asked if the undercover officer or the state agent allowed the conversation to flow naturally or directed the conversation to those areas where he knew the police needed information.
[37] The second set of factors is focussed on whether the police exploited any special characteristics of the relationship. Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused?
THIS CASE
[38] Mr. Hinkson on behalf of Nicholson argues that Officer Harloff stepped over the line into active elicitation and functional interrogation when he introduced the man in the blue suit into the conversation. The police officer eventually divulged in answer to Nicholson’s questions that this person’s first name was Chris, knowing full well that he would recognize him as Osborne.
[39] As recounted above, Sergeant Harloff steadfastly denied the man in the blue suit part of the conversation was for the purpose of stimulating Nicholson to speak about the allegations. He said it was part of the natural flow of the conversation. Mr. Hinkson attacked this evidence, saying that it was untrue and damaged Officer Harloff’s credibility.
[40] Harloff took a position and then carefully guarded it. He may well have been of the view that if he admitted that the blue suit topic and Chris Osborne were injected to assist in gathering evidence against Nicholson, this admission would be fatal to admissibility.
[41] It is obvious on its face that Harloff’s blue suit comments steered the conversation towards Osborne. Harloff’s purpose in mentioning it was not to make small talk. It was not a coincidence or accidental. He had a clear investigatory purpose. It was most likely a split second calculation on his part. It was more than simply keeping the conversational ball in the air with no specific purpose in mind.
[42] I do not view Harloff’s resistance on this point as a major strike against his credibility. It is true that he was keeping the flow of the conversation going about the crimes Nicholson had already been telling him about. There was a connection with the conversation about Nicholson’s blue suit, albeit somewhat tangential.
[43] The cross-examination of Harloff on this issue featured counsel and the officer dancing around each other on the head of a pin. The difference between them was to a significant extent semantics. On this record, the distinction between stimulation and keeping the flow of the conversation going was minimal.
[44] Bringing the inmate in the blue suit into the conversation would likely lead and did lead to Nicholson’s realization that it was Osborne. Reduced down, Harloff was only saying to Nicholson that he had just met Osborne in the bullpen. It was not said what they talked about. Nicholson did not seem to assume they talked about the incident although he did ask how Osborne was.
[45] While there is no doubt that the man in the blue suit subject stimulated the conversation, there was no undercurrent or implication in this reference which would pressure Nicholson to talk about the incident. Defence counsel analogized to a police officer in an interview of a suspect saying that he had also spoken to another person said to be involved in the allegations. But in that example, the interviewee would immediately wonder what the co-suspect had said and attempt to navigate through it. This is a frequent ploy of police officers in trying to obtain statements from suspects.
[46] Here, there could be none of that. Osborne was a passing acquaintance of Harloff’s. That’s all. It could not be assumed, and Nicholson did not seem to assume, that Osborne had been forthcoming about the allegations or in fact had said anything about them whatever.
[47] Was this the functional equivalent of interrogation? The word “interrogation” is not by origin a legal concept and in this context does not have its colloquial meaning. It does not refer to an interviewer rolling up his shirt sleeves and forcefully and repeatedly hurling accusations at a suspect. The threshold in a jail house setting is much lower than the common parlance meaning of interrogation implies.
[48] Examples from the cases of what is and what is not interrogation is helpful to define the line between the permissible and the impermissible. In Broyles, when the accused Broyles told his “friend” that he had nothing more to say to the police, the friend suggested that he could tell the police that he had killed the victim. When the accused objected that he had not killed her, the friend pressed on and suggested that perhaps he could not remember, that he had been on drugs at the time and that he had lost control. The friend admitted in his testimony that his purpose was to elicit that Broyles had killed the victim
[49] The unanimous Supreme Court held that there was no question this was the functional equivalent of interrogation. Broyles stands for the proposition that accusatory questions are out of bounds and constitute interrogation. See also R. v. Brown 1993 114 (SCC), [1993] 2 S.C.R. 918 in which the cell “plant” offered to help the accused but said that he needed details of the offence first. The Supreme Court found that this crossed the line.
[50] In R. v. Van Osselaer, 2000 BCSC 1065, 47 W.C.B. (2d) 178 (B.C. S.C.), aff’d 2002 BCCA 464, 167 C.C.C. (3d) 225 (B.C.C.A.), the undercover’s question “Who did you murder?” was found to constitute interrogation and was not part of the natural ebb and flow of the conversation. Also see R. v. Pritchard, 2002 BCSC 453, 59 W.C.B. (2d) 33 (B.C.S.C.) at paras. 22 and 30.
[51] On the other hand, in Liew, the court dealt with a situation in which an undercover officer negotiated a cocaine deal with the appellant. The take-down went awry. The appellant was arrested some distance away from where the transaction took place. The undercover officer was arrested at the scene.
[52] The two were housed in the cells together, the undercover continuing his role playing. The appellant started to discuss the drug deal. The undercover officer asked the appellant what had happened and the appellant said that the police had been watching. The undercover replied that his own fingerprints were on the dope and the appellant answered with the incriminating statement that his fingerprints were on it as well.
[53] Justice Major for the majority held that there was no elicitation or interrogation. The appellant had opened the area of discussion in the first place. The “what happened” comment did not redirect the conversation but just picked up the flow which the appellant had initiated.
[54] The undercover’s comment that his fingerprints were on the dope was the main issue. On this point, Justice Major held for the majority:
51 In accordance with Broyles, the undercover officer conducted his part of the conversation as someone in the role the appellant believed the officer to be playing would ordinarily have done. In the circumstances of this case the conduct of the officer was not the functional equivalent of an interrogation. The point is not that role-appropriateness by itself sanitizes the exchange, but that the undercover officer did not direct the conversation in any manner that prompted, coaxed or cajoled the appellant to respond. The appellant's response was not "caused" by the officer's statement in the sense that the officer's statement deprived the appellant of his choice whether to speak. In responding to the officer's statement, the appellant exercised his freedom to do so.
[55] Chief Justice Lamer writing a lone dissent disagreed, holding that the fingerprint on the dope comment redirected the conversation to the gravamen of the possession offence charged against the appellant (see paras. 3-5). It was equivalent to interrogation.
[56] Applying the principles derived from the leading authorities to our case, Harloff was not redirecting the conversation in any significant way. He was going with the flow of the blue suit motif. This was deft and showed quick thinking on his feet. What he did was completely role-appropriate. He stayed in character and was able to connect the conversation with the previous reference to Nicholson’s blue suit.
[57] He did not put to Nicholson accusations like the friend did in Broyles. He did not confront Nicholson with incriminating information.
[58] Furthermore, Harloff did not bait Nicholson the way the undercover officer in Liew baited the accused by mentioning that his—the undercover’s--fingerprints were on the drugs. The majority of the Supreme Court, including the judges who authored Hebert and Broyles, even with the baiting, did not think the right to silence had been violated.
[59] Even juxtaposed against the Charter appropriate conduct in Liew, Harloff’s conduct pales in comparison. This strongly suggests that there was no interrogation in this case.
[60] Mr. Maylor for the Crown also argues that Nicholson wanted to talk. I agree. The causation connection between the police part of the conversation and the accused’s statement, which is the ultimate question, is absent.[^1]
[61] Nicholson, immediately after waking up, began unburdening himself to a remarkable extent to his fellow arrestee, a total stranger to him. P.C. Stewart, another total stranger, was privy to the outpouring from Nicholson. Nicholson told them that he was looking at 20 years. He talked about the charges he was facing and said that he had fucked up and was going to wear this one. These were admissions of guilt. It was only then that it emerged that Osborne had been in the cell with Harloff.
[62] Nicholson’s volubility continued after the blue suit conversation in the same almost torrential flow. Perhaps it was the relief he felt that he was not going to die of exposure in the wilds of Brampton. Perhaps it was the realization that he was lucky not to have been killed or grievously injured in the incident at 10 Stokes. Perhaps it was simply his personality. But the deluge of information was quite extraordinary.
[63] From the likely apocryphal vignette of the cocaine secreted for a week in the most uncomfortable circumstances, only to be lost down the auto flush toilet—a post-modern urban variation on a famous scene from a 1970’s movie by Woody Allen—to the image of Nicholson crawling in the mud like in the Predator movie, these two strangers were having more fun than any two strangers ought to be entitled to have in a jail holding cell. The conversation flowed with abandon and Nicholson was more than happy to share with his new friend his version of what had happened the day before. His statements were free and voluntary.
[64] While some attempt was made by Mr. Hinkson to capitalize on the relationship between the two men, pointing to the second category of factors in Broyles, this fails to advance the application. Justice Iacobucci said there,
33… Did the state agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the state agent and the accused? Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk? (Emphasis Added)
[65] There men were perfect strangers before they met in the bullpen cell. Although they seemed to hit it off, there was no trust relationship, no exploitation, no vulnerability and no manipulation.
[66] What is intended by this second group of factors is illustrated by Broyles itself where Ritter exploited the trust the appellant had in him as a friend: see paragraph 37. Our situation here did not involve any of these factors which would impugn the fairness of Harloff’s interaction with Nicholson.
[67] In R. v. Clark (1998), 90 O.T.C. 32 (Ont. Gen. Div.), the undercover officer was able to earn the isolated, fragile accused’s trust by portraying himself as an experienced pro in the judicial system. Harloff did not ingratiate himself in this way.
[68] Finally, there were submissions made with respect to P.C. Stewart’s expression of surprise to Nicholson that he was “kicking” with the young offender included in the crime fact sheet. In my view, this was a relatively minor issue and had no impact on the statement given. It did not come close to the active elicitation/interrogation prohibition.
[69] In conclusion, Nicholson chose to voluntarily speak to his cellmates. Nothing was said or done which influenced his exercise of free will or caused unfairness. He knowingly ran the risk of his words being used against him in court. The right to silence is not so fragile that it is infringed by the simple mention without more of a causal and brief acquaintanceship with a co-accused. The right to silence was not violated.
[70] The conversation with Harloff and Stewart is admissible. The defence application is dismissed.
D.E HARRIS J.
Released: May 18, 2018
COURT FILE NO.: CR-17-0549-0000
DATE: 2018 05 18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
TYREL NICHOLSON
Applicant
REASONS FOR RULING
D.E HARRIS J.
Released: May 18, 2018
[^1]: Causation in a similar form is also part of the common law voluntariness rule, requiring a connection between the improper inducement and the accused’s statement: see R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 at paras. 54-55, 84; also see R. v. Fernandes 2016 ONCA 772 at paras. 26-30; R. v. Coaster, 2014 MBCA 108, 317 C.C.C. (3d) 339 at paras. 27-30.