Court File and Parties

COURT FILE NO.: 235/18 DATE: 2018/07/26 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty The Queen, Prosecution – and – Michael John William Ball, Accused

Counsel: R. Dietrich, and T. Shuster, for the Prosecution A. Bryant and A. M. Morphew, for the Accused

HEARD: June 13-14, 2018

Pre-trial APPLICATION No. 5 (Section 7 Charter APPLICATION)

Pursuant to section 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict, or until further order of the court.

The Honourable Justice J. R. Henderson

INTRODUCTION

[1] Michael Ball (“Ball”) is charged with the first degree murder of Erin Howlett (“Howlett”) on or about June 27, 2013 in Kitchener, Ontario. In this pre-trial application, Ball challenges the admissibility of a statement that he made when he was interviewed by police officers at his residence on October 17, 2013, during the course of the homicide investigation.

[2] On the previous evening, police officers from Waterloo Regional Police Service (“WRPS”), with judicial authorization, had covertly entered Ball’s residence and made it appear as if there had been a break-in while Ball was absent from the residence. During the staged break-in, the police officers removed several items of Ball’s property, including four firearms. Also, during the break-in, the officers left a note that had been written on a newspaper article about Howlett’s death. The note read, “I know you did it and now I have proof”.

[3] When Ball returned to his residence on the morning of October 17, 2013, he contacted the WRPS to report the break-in and the threatening note. Police officers attended at his residence and took a statement from him about the break-in, followed by a statement that related to the homicide investigation.

[4] It is the defence position that the conduct of the police officers breached s.7 of the Canadian Charter of Rights and Freedoms (“the Charter”) by infringing on Ball’s right to remain silent and the principle against self-incrimination. Defence counsel submits that because firearms were apparently stolen from his residence, Ball was compelled by s.105 of the Criminal Code of Canada (“the Criminal Code”) to report the loss of the firearms to police. Thus, because of police conduct Ball was compelled to make a statement to the police about the loss of the firearms, the break-in, and Howlett’s death.

[5] It is the position of the Crown that the police officers received judicial authorization to stage the break-in, and that the tactics used by the police officers in this case constituted a valid form of investigation. The Crown submits that there has been no breach of the Charter.

FINDINGS OF FACT

[6] It is the theory of the Crown that Ball and Howlett were involved in an intimate relationship commencing in April 2013. Further, Ball is alleged to have been a drug dealer who supplied Howlett with illegal drugs.

[7] The evidence suggests that the relationship between Ball and Howlett had deteriorated by June 2013, but that they continued to remain in contact. Howlett was last seen alive at Ball’s residence on the evening of June 27, 2013. Her body was found in a duffel bag in the Grand River on July 5, 2013.

[8] WRPS homicide investigators had contact with Ball several times prior to the October 17, 2013 statement. On July 6, 2013, Ball was first interviewed by police officers because he was one of the last people to have seen Howlett alive. He was interviewed again by police on July 12, 2013. By August 1, 2013, Ball was a suspect in the homicide investigation.

[9] On August 28, 2013, police investigators obtained an order pursuant to s.186 of the Criminal Code that, among other things, permitted police officers to intercept Ball’s communications, and install room probes in Ball’s new residence at 31 Maurice Street, Kitchener. By September 4, 2013, a wiretap operation had been commenced to monitor Ball’s telephone communications and the room probes.

[10] On September 27, 2013, Ball was interviewed by telephone by WRPS officer Richard Dorling (“Dorling”). One of the topics of that interview was Dorling’s request that Ball attend for a polygraph interview. Ball had previously told Dorling that he did not wish to attend for a polygraph interview, and on September 27, 2013, he repeated that position.

[11] On October 1, 2013, police investigators obtained a judicially authorized General Warrant that permitted officers to covertly enter and search Ball’s residence, cause property damage, and seize property, in order to create the believable scenario of an illegal break and enter at Ball’s residence. The purposes for the General Warrant, as set out in the Information To Obtain (“ITO”), included the protection of the public by removing Ball’s firearms and weapons, and the stimulation of conversations by Ball that would be intercepted by the wiretap operation.

[12] There is no indication in the material filed in support of the General Warrant that any police officer intended to leave a note at the scene of the staged break-in, and there is no suggestion that one of the purposes of the General Warrant was to encourage Ball to speak with police officers.

[13] Approximately two weeks prior to the staged break-in, on October 3, 2013, an undercover police officer surreptitiously left an envelope taped to the front door of Ball’s residence. The envelope was addressed to Michael Ball and contained a note that had been handwritten on a newspaper article about Howlett’s disappearance (“the first note”). The first note read “I know you killed her you asshole.”

[14] Ball did not immediately report the first note to police. However, the police wiretap operation captured several conversations on October 3 and 4 between Ball and some acquaintances in which Ball talked about the first note.

[15] In particular, Ball stated to acquaintances the following:

“This is why I want a camera on my front door.” “Someone’s harassing me.” “Somebody’s like threatening me.” “There’s a note taped to my door…my fucking heart hit my fucking asshole.” “I’m freaking out.”

[16] During one of these conversations, an acquaintance told Ball that he felt Ball was in danger. Ball responded, “What scares me is because I know the limits that I would go to…”

[17] On October 11, 2013, Ball had a chance encounter with WRPS officers Amanda Perrin (“Perrin”) and Mark Leinweber (“Leinweber”) outside of Ball’s residence. The two officers had been interviewing another person, Eric Antounes (“Antounes”), about Howlett’s murder when Ball walked past the police van. The two officers took the opportunity to interview Ball.

[18] During that interview, Perrin informed Ball that he was a suspect in the homicide investigation. Also, Ball was cautioned that he was not required to say anything to police, but anything he said could be used in court.

[19] Ball told Perrin about the first note that had been taped on his door. I find that Perrin was well aware that such a note had been left by an undercover police officer as part of the homicide investigation. During the interview, Perrin stated that she would start a police occurrence report regarding the threatening note, and Ball confirmed that he wanted Perrin to do so. Perrin left Ball with her contact information and said that she would contact him with the number of the occurrence report.

[20] Then, on the evening of October 16/17, 2013, undercover police officers, pursuant to the General Warrant, staged a break-in at Ball’s residence while Ball was out of the residence for the evening.

[21] During the course of the staged break-in, police officers caused damage to the front door of Ball’s residence so as to indicate a forced entry. Police officers also caused damage to a modem at the residence, and broke into and removed a safe from the residence. Further, police officers located Ball’s keys to a gun cabinet, unlocked the cabinet, and removed some of the contents.

[22] In summary, the property that police officers removed from Ball’s residence included two Mossberg .22-calibre rifles, a Remington rifle, a Remington shotgun, an Airsoft rifle, 9-millimetre ammunition, another box of ammunition, a PlayStation 3, a MacBook Pro computer, and small quantities of marijuana and cocaine.

[23] In addition, as part of the staged break-in, police officers left a note in the residence. The note was handwritten on a recent newspaper article about Howlett’s disappearance (“the second note”). The second note read, “I know you did it and now I have proof.”

[24] Ball returned to his residence at approximately 8:15 a.m. on October 17, 2013, to find the second note and what appeared to be the aftermath of a break-in. The wiretap operation captured several of Ball’s conversations that morning.

[25] One of the room probes captured a conversation that started at approximately 8:30 a.m. between Ball and Antounes. Ball told Antounes that he had been robbed, his place had been damaged, and that they took all of his guns.

[26] At 8:41 a.m., Ball called Perrin to report the break-in. He said, “Remember that note that I told you I got…well I just got another one and it’s a whole lot worse.” He continued, “Somebody kicked in my door last night when I wasn’t home and robbed my place including all of my firearms.” Perrin told Ball that she was out of town, but that she would have someone get back to him.

[27] At 8:58 a.m., Dorling called Ball and spoke to him on the telephone. During that conversation Ball said, “All of my firearms were stolen…everything is gone…my place has been trashed…somebody…left me another hate note.” Ball further stated, “Took my keys, they opened up my gun cabinet with my keys, they unlocked every single gun and took all of them.”

[28] Dorling stated, “So typically what we do for a break and enter report is have a patrol officer come around.” Ball said, “That would be great.” Dorling then said, “You know what, I can come around…I can drop around first and see what we need to do.”

[29] At 9:33 a.m., Dorling and WRPS officer Les Pike (“Pike”) arrived at Ball’s residence to talk to him. Ball told the officers about the break-in. He said that they took five guns, including his Smith & Wesson handgun. He told the officers about the second note. He also confirmed that there was a prior note and that he had talked to Perrin about it.

[30] Dorling told Ball that he was a suspect in the homicide investigation and that he did not have to talk to them about the homicide. He confirmed that anything Ball said about Howlett’s death could be used as evidence. In my view, Ball clearly understood this caution.

[31] Dorling attempted to separate the break-in interview from the homicide interview by telling Ball that he wanted to go through the break and enter first, and that he wanted to separate the two things. However, during the early stages of the conversation, Dorling, in speaking about the two parts of the investigation, also said, “It’s all sorta mixed into one.”

[32] Thereafter, Dorling spent about a half an hour speaking with Ball about the break-in. They walked from room to room and itemized the property that was missing. Ball spoke about people who could have possibly committed the break-in.

[33] During this part of the interview, Ball repeated that five guns were stolen including his Smith & Wesson handgun. In fact, Ball was aware that his handgun had not been stolen as Ball had not left it in the gun cabinet, but had hidden it in a duffel bag. Prior to Dorling’s arrival, Ball had given the handgun to his friend Antounes to remove from Ball’s residence and hide at Antounes’ residence.

[34] After the completion of the break-in interview, Dorling and Pike interviewed Ball in his residence about the second note and the homicide. This part of the interview started at 10:35 a.m. and continued until 11:21 a.m. It was audio recorded by police to Ball’s knowledge. It is this 46-minute statement that is the subject of this pre-trial application.

[35] At the commencement of the homicide part of the interview, Dorling said, “We are here investigating a break and enter…However, because of this note that you found … I guess that the two are linked. So because of that I want to go over a caution statement with you…there’s an investigation that’s ongoing in regard to Erin Howlett’s murder. You understand that you are a suspect in that…So anything we talk about here certainly can be used as evidence, if something comes up as we’re chatting here…you’re not obliged to say anything to us unless you want to do so.”

[36] Thereafter, Dorling interviewed Ball about the first and second note. Regarding the first note Ball said, “I was scared. When I first saw that first note my heart hit my stomach. I took it to my dad and he was like now this is an issue of your safety.” Ball continued, “Now they have my loaded guns, what if somebody shoots me with my own guns? Now I’m really scared.”

[37] Regarding the wording of the second note, Pike said to Ball, “What do you think they mean by ‘And now I have proof?’ Are they implying that they found something in here?” Ball replied, “If they went through everything, they can find whatever they want, but there’s nothing here.” Shortly thereafter, Dorling repeated, “Let’s separate the break and enter from this note.” However, both officers went on to question Ball about the break-in and about who could have committed it.

[38] During the conversation, both of the officers attempted to have Ball agree to attend for a polygraph interview. Ball clearly stated that he would not do so. Ball said, “I could care less now about a polygraph, I really could, I called you guys here to talk about this because now, seriously, I am a victim and I am scared.”

[39] At one point, Dorling asked Ball, “Did you kill Erin?” Ball said that he had not. This was followed by several questions about Ball’s relationship with Howlett and when he had last seen her. Ball answered all of the questions put to him without any objection.

THE LAW

[40] Section 7 of the Charter reads:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[41] It is clear that s.7 encompasses the principle against self-incrimination. This includes the right to remain silent. In summary, everyone has the right to freely choose whether to speak or not speak to state authorities who are investigating a suspected crime.

[42] In R. v. Hebert, [1990] 2 S.C.R. 151 the Supreme Court of Canada dealt with the legal principles that apply to a statement made to an undercover police officer by an accused who was detained in custody. The undercover officer in that case was posing as a suspect who was also in custody. In discussing the scope of s.7, McLachlin J. wrote at para. 47:

Despite their differences, the common law confessions rule and the privilege against self-incrimination share a common theme -- the right of the individual to choose whether to make a statement to the authorities or to remain silent, coupled with concern with the repute and integrity of the judicial process.

[43] Regarding the use of police trickery, McLachlin J. wrote at para. 66:

The scope of the right to silence must be defined broadly enough to preserve for the detained person the right to choose whether to speak to the authorities or to remain silent.… On this view, the scope of the right must extend to exclude tricks which would effectively deprive the suspect of this choice.

[44] In R. v. Oickle, 2000 SCC 38, [2000] S.C.J. No. 38, the Supreme Court of Canada again considered the scope of s.7. In Oickle, the accused was subjected to lengthy questioning by police officers after he had been arrested and detained. He subsequently confessed and participated in a re-enactment of the crimes. In considering the admissibility of statements made to police by the accused, Iacobucci J. wrote at para. 33:

In defining the confessions rule, it is important to keep in mind its twin goals of protecting the rights of the accused without unduly limiting society's need to investigate and solve crimes.

[45] Iacobucci J. reviewed the various approaches to the confessions rule, and then wrote the following at para. 68:

While the foregoing might suggest that the confessions rule involves a panoply of different considerations and tests, in reality the basic idea is quite simple. First of all, because of the criminal justice system's overriding concern not to convict the innocent, a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness.

[46] At paras. 65-66, Iacobucci J. found that police trickery was a consideration in determining whether a confession was voluntary. In doing so, Iacobucci J. accepted the following statement by Lamer J. in Rothman v The Queen, [1981] 1 S.C.R. 640 at p. 697:

[T]he investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work. What should be repressed vigorously is conduct on their part that shocks the community.

[47] In both the Hebert and Oickle decisions, the court dealt with statements made by an accused who had been detained in custody, and consequently the principles expressed in those cases are not easily applied to statements made by an accused during the course of an elaborate police undercover operation. Until the Supreme Court of Canada decision in R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, our courts struggled to analyze the admissibility of such statements.

[48] In Hart, the court dealt with a Mr. Big police operation in which the suspect was convinced by undercover police officers that there was a crime boss, known as Mr. Big, who wished to recruit the suspect into his operation. In the recruitment process, the accused was convinced to confess to Mr. Big about his crimes as a sign of loyalty to the criminal operation.

[49] Writing for the majority, Moldaver J. noted that the traditional law regarding the right to silence and the admissibility of confessions provided insufficient protection to accused persons who confess during Mr. Big operations. Moldaver J. expressed three concerns about the admissibility of these confessions, namely: 1) the danger of unreliable confessions obtained by threats or inducements; 2) the prejudicial effect of a Mr. Big confession caused by the bad character evidence that was associated with the criminal operation; and 3) the risk of police misconduct. See paras. 67-83 of Hart.

[50] In reference to police misconduct, Moldaver J. wrote at para. 78 that in Mr. Big operations, undercover officers often cultivate an aura of violence, and this may impact upon the reliability of a confession. Moldaver J. also wrote the following about physical violence or threats of violence at para. 116:

Physical violence or threats of violence provide examples of coercive police tactics. A confession derived from physical violence or threats of violence against an accused will not be admissible - no matter how reliable – because this, quite simply, is something the community will not tolerate.

[51] In summary, at paras. 84-89, Moldaver J. introduced a new two-pronged approach to Mr. Big confessions. He wrote at paras. 85-87:

85. The first prong recognizes a new common law rule of evidence.… Where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility is overcome where the Crown can establish, on a balance of probabilities, that the probative value of the confession outweighs its prejudicial effect….

86. As regard the second prong, I would rely on the doctrine of abuse of process to deal with the problem of police misconduct….

87. The purposes of this two-pronged approach are to protect an accused's right to a fair trial under the Charter, and to preserve the integrity of the justice system. Those are the ends that must ultimately be achieved.

[52] In concurring reasons in Hart, Karakatsanis J. also commented about police misconduct at para. 209, as follows:

The state must conduct its law enforcement operations in a manner that is consonant with the community's underlying sense of fair play and decency. It cannot manipulate suspects' lives without limit, turning their day-to-day existence into a piece of theatre in which they are unwitting participants. Such an approach does violence to the dignity of suspects and is incompatible with the proper administration of justice.

[53] Recently, this new judicial approach to statements made during a police undercover operation was considered by the Ontario Court of Appeal in R. v. Kelly, [2017] O.J. No. 3867. In Kelly, an undercover officer posed as a private investigator who was retained by a life insurance company regarding a policy on the life of the accused’s deceased spouse. The undercover officer concocted a scheme in which the accused would provide the details of the murder of his wife to the officer’s terminally ill friend, and that friend would then confess to the murder. Thereafter, they would split the proceeds of the insurance policy. The accused agreed and confessed to the murder.

[54] On appeal from conviction, Feldman J. held that the two-pronged approach to Mr. Big confessions, as set out in the Hart decision, should be applied to the circumstances in Kelly. Feldman J. wrote at paras. 26-28:

26. These confessions are admissible without the protection of the Charter that applies where the suspect is detained or the voluntariness rule that applies where the suspect confesses to a person in authority: … Before Hart, the only protection available was the discretion of the trial judge to exclude the confession if the police tactics would shock the conscience of the community, or if the probative value of the confession was outweighed by the prejudice caused to the accused: ….

27. In response to these concerns, Moldaver J. created a new, two-pronged framework within which to assess the admissibility of Mr. Big confessions.…

[55] Regarding the issue of whether Ball was compelled by law to provide a statement to police, the Criminal Code reads:

105. (1) Every person commits an offence who (a) having lost a firearm, a prohibited weapon, a restricted weapon, a prohibited device, any prohibited ammunition, an authorization, a licence or a registration certificate, or having had it stolen from the person's possession, does not with reasonable despatch report the loss to a peace officer, to a firearms officer or a chief firearms officer;

[56] In R. v. White, [1999] 2 S.C.R. 417, the Supreme Court of Canada considered the admissibility of a statement made by an accused where the statement was compelled by statute. That case dealt with the effect of a provincial Motor Vehicle Act that required a driver of a motor vehicle that had been involved in an accident to report the accident to police. The issue was whether the statement made by the accused under compulsion of the Motor Vehicle Act was admissible into evidence at the criminal trial.

[57] The Supreme Court of Canada confirmed in White that the admission of the statement at the criminal trial would violate s.7 of the Charter. Writing for the majority, Iacobucci J. wrote at paras. 40-43:

40. It is now well- established that there exists, in Canadian law, a principle against self-incrimination that is a principle of fundamental justice under s. 7 of the Charter.

41. The definition of the principle against self-incrimination as an assertion of human freedom is intimately connected to the principle's underlying rationale. …the principle has at least two key purposes, namely to protect against unreliable confessions, and to protect against abuses of power by the state. There is both an individual and a societal interest in achieving both of these protections.

[58] At para. 51, Iacobucci J. set out four factors for consideration in the analysis of the principle against self-incrimination where there is a statutory duty to make a statement, namely, the lack of real coercion by the state in obtaining the statement, the lack of an adversarial relationship between the accused and the state at the time the statement was obtained, the absence of an increased risk of an unreliable confession as a result of the statutory compulsion, and the absence of an increased risk of abuses of power by the state.

ANALYSIS

[59] There is a dispute in this case as to the proper way in which to analyze the factual matrix. The factual circumstances of this case do not neatly correspond with the facts in any previous court decision. In the decisions in Hebert and Oickle, unlike the present case, the accused had been arrested and was in custody at the police station when he made a statement.

[60] In the cases of Hart and Kelly, the accused was a suspect not in custody, and police had developed an elaborate undercover operation, as they did in the present case, in order to attempt to obtain a confession. However, unlike the present case, the accused in those cases was unaware that he was speaking with a police officer when he made the contentious statement.

[61] In the White decision, the statute required a person to report and to "furnish the information respecting the accident”. However, in the present case, s.105 of the Criminal Code only requires a person to "report the loss to a peace officer”. That is, there is no statutory requirement to provide “information” under s.105.

[62] Further, the substance of the statutory report in the White decision was the substance of the criminal charge. In the present case, the substance of the statutory report to police (the theft of firearms) is not the substance of the criminal charge (murder).

[63] In my view, the Hart decision is most significant to the present case as the court in Hart confirmed that the principle against self-incrimination, as enshrined in s.7 of the Charter, is not restricted to statements obtained through traditional police interviews. The court in Hart found that the protection of s.7 of the Charter may be extended in certain circumstances to statements that are made by a suspect during a police undercover operation. Moldaver J. also confirmed at para. 124-125 of the Hart decision that the four factors in White were only general factors that illustrated concerns with the principle against self-incrimination.

[64] That being said, the present case is not a Mr. Big operation because Ball at all times was aware that he was talking to police officers when he made the statement. Further, the police officers did not attempt to recruit Ball into a criminal or unlawful operation. For these reasons, I find that the two-pronged approach to Mr. Big confessions as set out in the Hart decision does not apply in the present case. That is, there is no presumption of inadmissibility.

[65] Collectively, the decisions in Hart, Kelly, and White confirm that s.7 protection applies to a wide variety of circumstances in which a suspect makes statements to a police officer or a person in authority. Therefore, I find that in the present case, the best approach is to conduct a broad contextual analysis of how the protection provided by s.7 applies to this unique fact situation. In coming to that conclusion, I am mindful of para. 44 of White in which Iacobucci J. wrote:

The jurisprudence of this Court is clear that the principle against self- incrimination is an overarching principle within our criminal justice system, from which a number of specific common law and Charter rules emanate…

[66] I find that in a s.7 analysis of a case in which an accused makes a statement to police in the course of an undercover police operation, or in response to police trickery, the factors that should be considered can be divided into three broad categories:

1. Was the statement made freely and voluntarily by the accused, or were there circumstances that coerced or compelled the accused to make the statement?;
2. Were there circumstances that affect the reliability of the statement?; and
3. Do the police tactics undermine the integrity of the judicial process to the extent that the tactics would shock the conscience of the community?

[67] In my view, all of these factors must be considered together in light of the factual matrix that is before the court. Specifically, the court must consider whether these factors, in conjunction with one another, constitute a breach of “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

[68] Regarding voluntariness, I accept that Ball had no choice but to report the apparent loss of his firearms to police pursuant to s.105 of the Criminal Code. In that sense, the initial communication from Ball to police was not voluntary. Because of the police tactics, Ball was compelled to report to police.

[69] I accept that Ball was not compelled to talk to police about Howlett’s murder. His duty was to report the loss of the firearms. Therefore, the Crown has a good prima facie argument that anything Ball said about the homicide investigation was not compelled by law. This argument is bolstered by the fact that Ball was cautioned, more than once, that he was a suspect in the Howlett murder, and that he was not obliged to talk to the police officers about the homicide investigation.

[70] However, on close examination, the Crown’s position that Ball was not compelled to talk about the homicide is flawed. In my view, the break-in, the theft of the firearms, the note left at the residence, and the homicide investigation cannot be separated.

[71] The second note is clearly linked to the break-in as it was apparently left by whomever committed the apparent break-in. If Ball was compelled to report the theft of the firearms during the break-in, Ball would also have to report the second note. Moreover, the second note clearly related to the first note that had been left on Ball’s front door, and both notes clearly related to Howlett’s murder. Thus, any report to the police of the theft of firearms during the break-in would inevitably lead to at least some discussion about the homicide investigation.

[72] I accept that Dorling tried to separate the break-in interview from the homicide investigation. However, in my view, it was impossible to do so. During the course of Ball’s interview with Dorling about the note and the murder, the discussion regularly veered back to the break-in. Questions kept arising during the homicide interview: Who could have done this break-in? Why would that person steal the firearms? What was the meaning of the note that was left? Even Dorling, while attempting to keep the two issues separate, said, “It’s all sorta mixed into one.”

[73] Further, I find that the police conduct was designed to coerce Ball into speaking with them about the homicide. The police planted the second note not only to stimulate conversation for the wiretap monitors, but also to create an opportunity for the police to interact with Ball about the homicide. The note was clearly a link to the homicide. I find that the police officers planned for Ball to contact them about the break-in, and they hoped that any discussion about the break-in would lead to a discussion about the note which would then lead to a discussion about the homicide. The fact that the WRPS sent a homicide investigator, Dorling, to take a routine break and enter report supports this finding.

[74] I also find that the police conduct placed undeniable pressure on Ball to contact police for his own safety. On this issue, I accept the defence submission that Ball felt threatened by the first and second notes. After he received the first note, Ball said, among other things, “Somebody’s threatening me.” After he received the second note, Ball told Dorling, “I was scared…now they have my loaded guns…now I’m really scared.”

[75] The Crown submits that the notes did not in fact contain any threats of harm directed at Ball. I disagree. The circumstances surrounding each note, the fact that the notes related to the murder of Howlett, and the accusatory tone of the notes, in my view, constitute threats. Objectively, there was good reason for Ball to perceive that he was being threatened.

[76] Given that Ball had reason to fear for his own safety, Ball had to turn to someone for protection. Thus, there was pressure on Ball to turn to the WRPS. At 8:33 a.m. on October 17, 2013 before he called Perrin, Ball said to Antounes, “I gotta call my mom and the police.” Antounes agreed.

[77] In summary, I find that Ball felt compelled to call police because of his statutory obligation to do so as a result of the theft of the firearms, but that he also felt pressure to call police because he perceived that he was being threatened and needed protection. The fact that because of police conduct Ball was pressured or was required to call police about the events that occurred at his residence, and the fact that those events were closely linked to the homicide investigation, cause significant concern regarding the voluntariness of Ball’s statements.

[78] Regarding the reliability of the statement, I accept the comments in White about the fear of prejudice that may arise if an accused does not provide a report pursuant to a statutory duty. At para. 62 of the White decision Iacobucci J. also wrote, “At the same time, there may be a strong incentive to provide a false statement, given the serious consequences which the driver may feel will flow from telling the truth, even if the truth does not in fact support a finding that a criminal offence was committed…”

[79] In the present case, I accept that Ball felt that he had to report the break-in, but that there was a strong incentive for Ball to be evasive or untruthful with police. Ball knew that he was a suspect in a homicide investigation and he also knew that he had illegal drugs in his residence. Thus, Ball had reasons to avoid or evade certain questions from police.

[80] In fact, in hindsight, it is clear that Ball lied to Dorling about the theft of his Smith & Wesson handgun. Ball suggested that he did so because he wanted the police to take the break-in threat more seriously. The Crown suggested that Ball was just not being truthful. In this decision, I will not determine Ball’s motive for lying about the Smith & Wesson handgun. However, Ball’s lie to the police about the theft of the handgun certainly shows that, at least in part, Ball was not truthful with police. Thus, I accept that there is reason to question the reliability of Ball’s statement.

[81] Regarding the last category of factors, whether the police tactics would shock the conscience of the community, I accept that many police tactics or police tricks have been condoned by the courts for the purpose of permitting the police to do a full and thorough investigation. As has been discussed many times, most criminals do not spontaneously have a moral epiphany causing them to confess a crime. Some police trickery is permitted in order to encourage statements from suspects who may not do so without some prompting. The question is: have the police officers gone too far?

[82] It is important to note that Ball was the only suspect in the homicide investigation at the time. The primary focus of the police with respect to Ball as of early October 2013 was the police effort to have Ball agree to take a polygraph interview.

[83] In that context, police officers applied to the court for a General Warrant. This, according to the Crown, is the authority for the staged break-in. One of the purposes for the General Warrant as set out in the ITO was to “stimulate the wiretaps”. In my view, this is a valid, legitimate purpose. However, as discussed earlier, I find that one of the unstated purposes of the staged break-in was to pressure Ball into talking to police about the homicide. I find that the second note left at the scene of the staged break-in was designed to ensure that the homicide was part of Ball’s discussion with police.

[84] In my view, Dorling was well aware that one of the purposes of the staged break-in was to compel Ball to speak with police about Howlett’s murder. In his testimony, Dorling agreed that he was intending to attend at Ball’s residence to take a break and enter report, but that he would also take advantage of any opportunity to talk about the homicide investigation.

[85] It is significant that the police officer who swore the ITO did not refer to the possibility of leaving a second note, referencing the homicide, that could be perceived as a threat to Ball. Thus, it was not frankly disclosed in the ITO that the staged break-in would compel Ball to talk to police by reason of statute, and would likely pressure Ball to talk to police about the homicide investigation.

[86] Further, the threat of violence to Ball is a subtle theme that runs through the police conduct. Both the first note and the second note were perceived as threats by Ball. Objectively, it was reasonable to perceive these notes as threats. The theft of Ball’s firearms during the break-in at the time of the second note added to the threat of violence. As discussed by Moldaver J. at para. 116 of the Hart decision, a confession derived from physical violence or threats of violence will not be admissible. As Karakatsanis J. wrote at para. 209 of Hart, “The state must conduct its law enforcement operations in a manner that is consonant with the community's underlying sense of fair play and decency.”

[87] I find that the police conduct in this case was unfair, even abusive, because it was intended to intimidate Ball. When the police became aware that, as a result of the first note, Ball feared for his physical safety, they not only continued the narrative, but escalated it. The police must be allowed some flexibility to carry out effective investigations, but this flexibility cannot extend to tricks that threaten the suspect’s physical or psychological safety.

[88] In conclusion, I find that the police officers created an aura of violence and threats of violence. Ball was made to believe that he was the target of threats that related to Howlett’s murder. I find that Ball was statutorily required to report the theft of the firearms to police, and consequently he felt compelled to discuss the break-in and the second note. I further find that Ball was pressured into speaking with police for his own protection. Further, I find that the conversation between Ball and the police officers about the break-in and the note inevitably led to a discussion about the homicide investigation. Despite Dorling’s efforts, the two topics could not be separated. Moreover, I find the police officers were not completely frank about the purposes for the General Warrant. For these reasons, I find that the police conduct in this case constitutes a breach of s.7 of the Charter.

[89] Having reached that conclusion, I must consider s.24(2) of the Charter, which reads:

Where, in proceeding under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[90] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada reviewed the test for exclusion of evidence under s.24(2) by setting out three avenues of inquiry that the court must balance. Para. 71 reads as follows:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

[91] I find that the breach in this case constitutes a very serious infringement of the Charter by the state. Collectively, the police officers used tactics that were designed to intimidate and coerce Ball into making a statement to police; that used Ball’s statutory obligation to report the theft of firearms as a means of compelling him to talk about the homicide; and that involved threats of violence against Ball. In addition, the police officers did not make full and frank disclosure to the presiding judge in the material in support of the General Warrant.

[92] I also find that the impact of the breach had a serious effect on the rights of the accused. The right to silence and the right against self-incrimination are longstanding rights that are encompassed by s.7 of the Charter. The result of the breach by the WRPS was that those rights were taken away from Ball at a time when he was the only suspect in a homicide investigation.

[93] I accept that society’s interest in the adjudication of the case on its merits is an important factor, but it is outweighed by the first two factors in this case.

[94] For these reasons, I find that Ball’s statement should be excluded from the evidence at the trial because “having regard to all of the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

CONCLUSION

[95] I find that the conduct of the WRPS police officers constitutes a breach of the rights of the accused as set out in s.7 of the Charter, and that Ball’s statement made to police on October 17, 2013 is not admissible at the trial.

J. R. Henderson J.

Released: July 26, 2018