Court File and Parties

Court File No.: 17-DV6308 Date: 2019/02/28 Superior Court of Justice - Ontario

Re: Her Majesty the Queen v. John Brown [1]

Before: Mr. Justice Calum MacLeod

Counsel: Anya Kortenaar, for the Crown Michael Spratt, for the Accused

Heard: February 19, 2019

Ruling REGARDING CHARTER APPLICATION, S. 24 (1)

[1] The accused seeks a ruling that his rights under the Canadian Charter of Rights and Freedoms were breached as a result of his original arrest and detention. As a remedy he seeks to have the charges against him stayed.

Background

[2] Mr. Brown is currently charged with 11 offences including sexual assault, assault and threatening. It is alleged that in the commission of one or more of these offences he pointed a handgun at the complainant and threatened to shoot her. The complainant reported these events to the police in October and November of 2016.

[3] Following the complaint and investigation, the police decided it was appropriate to arrest the accused and to charge him with the offences. In addition, a warrant was obtained to search his residence and to seize his firearms pursuant to s. 117.04 of the Criminal Code.

[4] On February 15, 2017, having been informed he was going to be arrested, and contacting his lawyer, Mr. Brown had arranged to turn himself into the police. He attended at the Ottawa Police Service for that purpose at 8:00 a.m. and was taken into custody by Detective Meam. At that time, the accused was informed by the police that they expected to release him after he had been interviewed and charged. He was also advised that a tactical team would be searching his residence and automobile and seizing any weapons along with the associated permits. He was given a further opportunity to consult with counsel.

[5] During the course of the subsequent interview, the accused agreed to co-operate with the warrant by permitting the police to use his house keys and his car keys and he agreed to provide the combinations to his gun safes. Had he not done so, of course, the police would have used force to enter the home and to break open or remove the safes. A police tactical team was poised to do just that should it be necessary.

[6] The process of searching the house and gaining entry to the safes took longer than anticipated for a number of reasons. The combinations to the gun safes were stored on a locked cell phone which was at the house. The police had to retrieve the phone and bring it to the police station in order for the accused to provide the combinations. There followed some discussions about precisely how to operate the locks but eventually the police were able to recover a hand gun and two long guns as well as multiple rounds of ammunition.

[7] Apart from the information provided to co-operate with the warrant, the accused exercised his right to silence and declined to answer questions during the interview. He was told that he could not be released until after the search was completed and the firearms taken into safe keeping by the police. Despite repeated efforts by Detective Meam, the accused gave no statements, answered no questions and declined comment on the accusations made against him.

[8] After the police completed the search and took custody of the weapons, Detective Meam spoke with the complainant and reviewed the situation. He was reminded in that conversation that the complainant remained highly fearful and lived close to the defendant’s residence. He may have been told by the complainant that she believed the accused owned more weapons although he did not document this information in his file. Detective Meam then decided not to release the accused and instead he decided to detain him for a show cause hearing. In fact, he decided to recommend continued pre-trial detention.

[9] By this time, it was late afternoon. Although a Justice of the Peace would still have been sitting at the court house, Detective Meam did not believe he could complete the information and synopsis and bring the accused before the justice before court rose for the day. He decided to hold the accused overnight and bring him to court in the morning. As a consequence he was aware that he would not be complying with s. 503 (1) (a) of the Criminal Code. The accused was not brought before a Justice within the 24 hours prescribed by the Code where a justice is available. It was 25 ½ hours between the time of his arrest at 8:00 a.m. on the 15th and his appearance at “show cause” court at 9:00 a.m. on the 16th.

Analysis

[10] Counsel for the accused states that the police misled the accused by telling him they would release him and engaging his co-operation and then breached his Charter rights by detaining him unreasonably. Although a justice was available, the officer knew that by holding the accused overnight for the morning show cause court, he would have been held for longer than 24 hours. Counsel argues that this decision shows a wanton and systemic disregard for Charter rights and obligations.

[11] The accused argues that any statement made to the police should not be regarded as voluntary if it was made under the false promise of release. He also argues that the court should stay the charges because under the circumstances there is no other obvious remedy for the Charter breach.

[12] I heard evidence on this matter. The evidence does not support a finding that the police lied to the accused or purposefully misled him. It appears that Detective Meam did intend to release the accused on conditions but he changed his mind. This is the reason he had not yet prepared and sworn the information or made arrangements to transport the accused to the court.

[13] The basis for the change of heart by the arresting officer seems to have been a conversation with the complainant in which Ms. Doe continued to express being fearful of the accused. The officer was concerned about the amount of ammunition that was recovered and was concerned the accused might have access to other firearms. In his oral testimony, the officer stated that the complainant had indicated her belief the accused had as many as ten firearms but this information does not appear in his notes. In any event, I accept that it was not the original intention to detain the accused. It is certainly true, however, that the accused (and his counsel) were operating under the belief that he would be released and the only thing delaying his release was the need to recover the firearms. The accused may not have been intentionally mislead but it was an unpleasant surprise to say the least.

[14] It is odd to argue about the voluntariness of a non-confession. The accused did not make any inculpatory statement to the police and the Crown does not seek to rely upon the police interview. The codes to the gun safes which were divulged are not evidence on which the Crown seeks to rely although of course the firearms that were recovered may be. There was a valid warrant to seize the firearms and they would have been seized under the warrant with or without the codes. The Crown has agreed not to use the statement to the police or the codes as evidence at trial. Voluntariness of the statement is therefore not a live issue.

[15] I have concern about the cavalier detention of the accused for more than 24 hours when it should have been unnecessary. This occurred for two reasons. Firstly, Detective Meam appears not to have been aware that the senior Crown and the Ontario Court of Justice had changed the procedure in bail court so that the accused could have been brought before the J.P. in the afternoon and there was not a cutoff at 2:00 p.m. Secondly, although it was always possible that information would be obtained during the interview or the search justifying detention, no effort had been made to ensure that the accused’s Charter rights would be respected if detention proved necessary. The information and the synopsis had not been drafted and there had been no discussion with the Crown about possible bail conditions. No effort was made to treat the matter as one of urgency when the decision to detain was made. The officer did not contact the court to see if it was possible to get before the J.P. or to alert the court of the possibility. There was no attempt to take the accused before the court in a timely fashion.

[16] Failure to follow the requirements of the Code renders detention prima facie unreasonable and is therefore a breach of rights guaranteed by ss. 7, 9 and 11 of the Canadian Charter of Rights and Freedoms. The Crown concedes that this is so but argues that a stay of the charges is unreasonable. Other remedies exist such as consideration of the matter in sentencing if and when there is a conviction.

[17] It is true that any unreasonable detention is serious in a free and democratic society and I share the concern expressed by defence counsel about the failure of the Ottawa Police Service to take this obligation seriously. He suggests that this is a systemic problem with the OPS because there appears to have been no policy, training or protocol to assist the arresting officer in understanding the gravity of what he was doing. Keeping a citizen overnight in a holding cell when he is entitled to both the presumption of innocence and the presumption of pre-trial interim release is a very significant intrusion on his personal freedom that can only be justified if there is no reasonable alternative.

[18] Serious as this is however, it must also be balanced against concern for the rights of other citizens and the administration of justice in light of the very serious offences with which the accused is charged. Mr. Brown was ultimately released the following morning on bail conditions to which the Crown consented and for that purpose he was brought before the Justice of the Peace as soon as court opened. The administration of justice would be brought into disrepute by staying these charges over a relatively short delay in providing the accused with his right to a bail hearing. Not every Charter breach justifies a stay of proceedings.

Conclusion

[19] The application for a stay of proceedings is dismissed.

[20] The Ottawa Police Service and Detective Meam are admonished for not taking steps to bring the accused before a justice on the day he was arrested.

[21] I will consider the matter further if the accused is convicted and it is necessary to impose a sentence.

Mr. Justice C. MacLeod Date: February 28, 2019

Footnotes

[1] As set out in a previous ruling (R. v. Brown, 2019 ONSC 1335), in support of the publication bans in this proceeding I am using pseudonyms to protect the identity of the complainant. I am referring to the complainant as Jane Doe and the accused as John Brown.