Court File and Parties

COURT FILE NO.: CR-17-8110-00 DATE: 20190506 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ANDERSON ET AL. Defendant/Respondent

Counsel: Lucas O’Neill, for the Crown Carlos Rippell for the Defendant Rushawn Anderson Gary Grill and Leo Salloum, for the Defendant Nicholas Rhoden

HEARD: March 26, 27, 28, 29, April 1, 2, 3, 4, 5, 17 and May 1, 2019

REASONS FOR DECISION

MCCARTHY J.:

Introduction

[1] This case serves as an example of why it is of fundamental importance that police be equipped with and have activated, functioning standard audio and video recording devices while interacting with the public. Indeed, the investigating officers who testified at this hearing universally agreed that these recording devices serve as an objective eye and are essential both to maintain public trust and confidence in police action and as a means of securing evidence for judicial purposes. From the perspective of the bench, evidence from these recording devices serves as solid, objective, reliable, and possibly irrefutable evidence in applications concerning alleged Charter violations.

Background

[2] The two accused, Anderson (“A”) and Rhoden (“R”), are each charged with attempted murder and aggravated assault in respect of a shooting (“the shooting”) which took place at the Cameo Lounge Restaurant and Bar (“Cameo Lounge”) in the early morning hours of April 3, 2017.

[3] On that morning, Sergeant Sidhu of the Toronto Police Service (“TPS”) was travelling westbound on Steeles Avenue in a marked police cruiser. At 2:37 a.m., Sgt. Sidhu witnessed a Honda Accord (“the Honda”), travelling south on Scholes Road, enter onto Steeles Ave. West in front of him, at a high rate of speed and without stopping at the red light for southbound traffic. Sgt. Sidhu activated his police emergency lights and the Honda pulled over and stopped in the curb lane of Steeles Avenue just west of Scholes Road. This incident is referred to as the “vehicle stop”.

[4] Sgt. Sidhu approached the Honda. R was the operator of the Honda; A was a front seat passenger. Sgt. Sidhu asked to see R’s driver’s license as well as insurance and ownership documentation. Sgt. Sidhu noticed that R appeared nervous and to be shaking; in contrast, A was relaxed and reclined in his seat. R could not produce the ownership to the Honda. Sgt. Sidhu became suspicious that the Honda was stolen. Sgt. Sidhu asked A for identification. A could not provide any. After a few moments, Sgt. Sidhu asked R and A why they were in such a hurry. The pair advised that they were fleeing the scene of a shooting at the Cameo Lounge just across the parking lot. R finally produced the ownership to the Honda. As Sgt. Sidhu returned to his police vehicle, he received confirmation from dispatch of the shooting at Cameo Lounge. Sgt. Sidhu formed a suspicion that R and A may have been involved in the shooting. Sgt. Sidhu called in for police back-up.

[5] Eventually, Police Constable Ledat and Police Constable Wright of the TPS arrived at the scene. The three officers were briefed by Sgt. Sidhu. Moments later, the three officers approached the Honda and asked R and A to exit the Honda. They complied. The two accused were placed under investigative detention. At some point, A identified himself as Ernest Boateng (“Boateng”).

[6] Both R and A were subjected to a pat down search. PC Ledat conducted a search of the interior of the Honda, locating a satchel and a bandana in the back seat. PC Ledat then searched the trunk of the Honda and discovered what appeared to be two guns.

[7] A short time later, Police Constable Mota of the York Regional Police Service (“YRP”) arrived at the traffic stop and took over the investigation. During the investigative detention at the vehicle stop, events were unfolding outside of the Cameo Lounge only a few hundred yards away. Police were soon on the scene of the shooting initiating an investigation which ran concurrently with the investigative detention taking place at the vehicle stop.

[8] This first interaction between police and the two accused was captured on Sgt. Sidhu’s in-car camera; none of the officers activated their portable microphones prior to engaging with the two accused. Accordingly, there is no audio recording of this stage of the investigative detention.

The Crown Application

[9] In this blended voir dire, there are several applications.

[10] The Crown seeks a determination that the following statements were voluntary and are admissible at trial:

• the utterances made by A and R to Sgt. Sidhu and other officers at the vehicle stop and at 4 Detachment (“the detachment”); and
• the videotaped statement made by A to Detective Constable Cobor of YRP at the detachment.

The Defence Applications and Respective Positions of R and A

[11] Both accused seek a finding that their various Charter rights under Sections 8, 9, 10(a) and 10(b) of the Charter were violated by both TPS and YRP during the vehicle stop, the respective detentions of the two accused and the accompanying investigations into the shooting, which took place beginning in the early hours of April 3, 2017.

i. Rhoden

[12] For his part, R argues that, following the rather unremarkable vehicle stop, both R and A were ordered out of the Honda. Neither were told why they were being detained. No rights to counsel were afforded to R within a reasonable period of time. This constituted a violation of R’s rights under s. 10(a) and 10(b) of the Charter.

[13] Both R and A were searched, handcuffed, and made to sit on the curb at the rear of the Honda. The Honda, including the trunk, was then searched without a warrant or other lawful justification. R was subjected to a further pat down search at the hands of PC Mota. These constituted unreasonable searches of both of his person and his property for the purpose of s. 8 of the Charter.

[14] R and A were both questioned during their detention without being provided their right to counsel. R was later interrogated at the detachment. Although he was, at this time, provided with information about his right to counsel, he had no understanding of his jeopardy and was not provided with an opportunity to actually speak with a lawyer. His rights under s. 10(b) of the Charter were infringed.

[15] Aside from the brief detention necessary for the vehicle stop, the detention of R for many hours was arbitrary and unreasonable. The investigative detention of R for the shooting was arbitrary; very early on in the investigation, police had a description of the shooter that did not match R. Almost immediately, police had determined or should have known that the guns seized in the trunk of the Honda were imitation weapons. This arbitrary detention constituted a violation of his s. 9 Charter rights.

[16] As a remedy, under s. 24(2) of the Charter, the accused R seeks the exclusion of the following evidence:

• any images of R captured on the in-car video cameras or while he remained in detention at the detachment;
• details of any observation made by any police officer of R during his unlawful detention;
• any items found in the Honda; and
• any statements made by R to any police officer.

ii. Anderson

[17] A’s position is similar but relies on some different factual considerations. In addition, A contends that his two confessions of his real name to police and the videotaped statement given to Det. Cobor at the detachment were not voluntary. The Crown must prove voluntariness beyond a reasonable doubt, failing which, neither the evidence of the confession nor the transcript and the video tape of the statement can be admitted into evidence. A’s confession of his real identity was given without proper rights to counsel or a caution in respect of the offence of obstruct justice and providing a false name. In addition, A was induced into making the confession on the pretext that he would not be permitted to go free until he gave up that information. In respect of the videotaped interview, by Det. Cobor advising A that he was being asked to give a statement as a witness only, A was induced by police trickery and a promise that he was not implicated in the shooting.

[18] A argues that during the vehicle stop, Sgt. Sidhu demanded identification from A without advising A that he was under suspicion for vehicle theft. A had no identification and provided a false name. Sgt. Sidhu’s questioning of A was arbitrary. A was entitled to know the reasons for his detention and should have been afforded his rights to counsel. This was a violation of his s. 9, s. 10(a) and 10(b) Charter rights.

[19] Almost immediately, Sgt. Sidhu learned of the Cameo Lounge shooting and briefed PC Ledat and PC Wright accordingly. Police removed A from the passenger side of the Honda and detained him, without providing any basis for the detention, any rights to counsel or caution, and without providing any means by which to contact counsel.

[20] It was only when he was placed in the back of a police vehicle that A was provided with rights to counsel. When asked if he wanted to speak to a lawyer, A’s response of “I don’t know” was not a clear and unequivocal waiver of his rights to do so.

[21] A was brought back to the detachment and booked like a person under arrest. After being held in a cell for several hours, he participated in an interview with Det. Cobor at the beginning of which, he was assured that he was considered only a “witness” to the shooting. A was not advised that he was suspect.

[22] After giving the statement, A was finally arrested and provided his rights to counsel on the charge of obstruct justice at approximately 11:30 a.m. A spoke to duty counsel shortly thereafter.

[23] It was only after A was properly identified that he was unconditionally released at approximately 1:40 p.m.; but not before spending more than 11 hours in police custody. If A was a mere witness in the shooting, he should not have been booked or detained. Investigative detention must be brief. Eleven hours is not “brief.” His detention for most of these eleven hours was therefore arbitrary and unlawful. This was an arbitrary detention under s. 9 of the Charter.

[24] A experienced a violation of his rights under both s. 10(a) and (b) of the Charter. Police failed to properly notify A that he was being detained for obstruct justice and providing a false name. Police also failed to provide rights to counsel or a caution in respect of these alleged offences. A had the right to know all of the reasons why he was being detained; he was never honestly informed of the full extent of his jeopardy.

[25] As a result of these Charter violations, A seeks the exclusion of any evidence obtained or gathered by the police in the wake of these breaches. This relief is sought under s. 24(2) of the Charter.

The Crown’s Position

[26] The Crown contends that the vehicle stop was lawful. R had failed to stop at a red light while travelling at a high rate of speed. R was advised of the reasons for the vehicle stop. There is no need for police to provide rights to counsel during a lawful vehicle stop and investigation.

[27] During the brief interaction with R and A at the vehicle stop, Sgt. Sidhu formed a reasonable belief that the Honda was stolen; he formed this belief because of the manner in which the Honda had been operated and the inability of R or his passenger A to produce ownership documentation. Sgt. Sidhu was justified in asking A for identification; as a passenger in the Honda, he was a logical suspect if the vehicle was stolen. R was detained as reasonable incident to a vehicle stop. A was not detained at all; the request for identification had not been a demand.

[28] Upon receiving confirmation of the shooting, TPS placed both R and A into investigative detention. This was both reasonable and justifiable given the proximity of the vehicle stop to the Cameo Lounge, the respective demeanours of the Honda’s occupants, the information offered by them that they had just fled the shooting and the fact that R had waited for some time into the vehicle stop interaction before providing that information to Sgt. Sidhu.

[29] As well, police conducted reasonable pat down searches of both A and R; a mildly intrusive search for weapons was more than reasonable in light of the proximity of the shooting and heightened concerns for officer and public safety.

[30] The two accused were immediately advised that they were being detained, the reason for the detention and were provided with rights to counsel and caution. The search of the interior of the Honda was reasonable, quick, non-destructive, and entirely justified on grounds of officer and public safety. PC Ledat received verbal consent to search the trunk of the Honda from R; PC Ledat had a reasonable belief that the satchel might have been used to carry a firearm. The conduct of the officers at the vehicle stop was reasonable in light of the dynamic and fluid nature of the vehicle stop investigation and the fact that it soon became linked to and intertwined with the parallel investigation into the Cameo Lounge shooting a short distance away.

[31] Neither detention was arbitrary. A lengthy period of investigative detention was necessary and justified due to a number of factors: the fact that a shooting and potential murder had just occurred in close proximity to the vehicle stop; the uncertainty as to whether R and A played any role in the shooting; R’s criminal antecedents; the discovery of the guns in the Honda; A providing police with a false name and the investigative need to positively identify A before releasing him.

[32] A already understood his jeopardy when he went into the interview with Det. Cobor. He had been provided the reasons for his detention, his rights to counsel and a caution. A had ample time to consider his position and to ask to speak to a lawyer before the interview. There were no threats, intimidation, inducements, or promises made to A. Det. Cobor conducted the interview in a thorough and fair manner. All statements made by A while under investigative detention were voluntary.

The Pertinent Evidence on the Voir Dire

i. Sergeant Sidhu (Sgt. Sidhu)

[33] Following the vehicle stop, Sgt. Sidhu approached the driver’s side of the Honda and advised R why he had stopped him. The in-car camera captures this first interaction at 2:39 a.m. Sgt. Sidhu observed R to be extremely nervous; his hands were shaking and he was trembling. In contrast, his passenger appeared relaxed and was reclined in the passenger’s seat. R produced his driver’s license. Sgt. Sidhu then asked R for the vehicle ownership and insurance slip. R could not find the ownership. A offered some assistance, opening the glove compartment of the vehicle, fishing it out and handing over various papers, one of which was a take-out menu, and none of which were the sought after ownership.

[34] In light of R’s demeanour, the nature of the traffic offence, and the difficulty the occupants of the Honda were having in locating the ownership, Sgt. Sidhu began to suspect that he was dealing with a stolen vehicle. At some point during this brief interaction Sgt. Sidhu asked A for identification; A advised that he did not have any. When Sgt. Sidhu asked the pair where they were going in such a hurry, he was advised that they were fleeing for their safety from a shooting at the Cameo Lounge. Sgt. Sidhu did not find this believable; it was something that surely they would have mentioned at the beginning of the interaction. The ownership papers were finally located and handed over at approximately 2:42 a.m. With the vehicle papers in hand, Sgt. Sidhu returned to his police car to start running the information on the Honda.

[35] At 2:43 a.m., Sgt. Sidhu heard through dispatch of the shooting at the Cameo Lounge. The Cameo Lounge was located just to the north of the vehicle stop and within plain view. At that moment, Sgt. Sidhu became suspicious that the two occupants of the Honda had been involved in that shooting. Sgt. Sidhu called for back-up. PC Ledat and PC Wright arrived at the vehicle stop a few moments later. Sgt. Sidhu briefed the two officers on the situation; they arrived at a plan to detain and investigate the occupants of the Honda and inspect the vehicle. The in-car camera shows Sgt. Sidhu, PC Ledat, and PC Wright approaching the Honda at 2:46:26 a.m. The two occupants of the Honda were placed under investigative detention.

[36] Sgt. Sidhu’s role in the investigation detention diminished from that point. He did assist PC Wright in removing R from the vehicle. PC Wright conducted the pat down search. A identified himself as Ernest Boateng (“Boateng”) but stated that he did not carry identification on him because he was not driving and knew that he could get into the night club without it. Inquiries through CPIC provided information about R’s criminal antecedents. Nothing was returned on Boateng. A and R confirmed that they had left the Cameo Lounge after hearing multiple gunshots. Sgt. Sidhu overheard R providing PC Ledat with consent to search the Honda and telling him that he would find pellet guns in the trunk. PC Mota from YRP arrived at the vehicle stop at about 3:00 a.m.

[37] I found Sgt. Sidhu to be a generally credible witness. I found this to be so even though Sgt. Sidhu offered contrasting versions about the consent given by R for the search of the Honda. At one point, he stated that he overheard that consent to search communicated directly by R to the other officers. Later, Sgt. Sidhu suggested that he was advised of that consent by his fellow officers at the commencement of the vehicle search or shortly thereafter. When pressed, Sgt. Sidhu conceded that nobody had obtained consent to search the vehicle. Moments later, Sgt. Sidhu advised that R gave consent to search the vehicle while being patted down. Finally, Sgt. Sidhu accepted that PC Ledat did not have consent to search the vehicle when he did.

[38] These contrasting versions of events by a police officer do raise the concern of the court; however, I find that Sgt. Sidhu was more confused by the form and content of the questions. I accept that he was left trying his best to put together an honest account of the consent to search issue. I do not believe that he was attempting to mislead the court. No doubt, Sgt. Sidhu, who believed that he was conducting a fairly routine vehicle stop became unexpectedly embroiled in a dynamic and fluid investigation into a nearby shooting. The confusion and inconsistencies in his evidence about the consent to search the vehicle serve to undermine the reliability of his evidence on the consent issue; that does not, in my view, impact his overall credibility which I found was left intact despite the shortcomings in his evidence.

[39] Sgt. Sidhu was candid in confirming that he did not hear any rights to counsel or caution read to either A or R. This may have been because he strayed from the scene of the vehicle stop at approximately 2:50 a.m. to walk towards the parking lot of Cameo Lounge, where the scene was in the early stages of commotion. At some point, he learned that a suspect in the shooting was a Somalian. Sgt. Sidhu returned to the vehicle stop at about 2:58 a.m. He was not involved in the handcuffing of either A or R. Upon the arrival of YRP’s PC Mota, Sgt. Sidhu turned over R’s driver licence and the vehicle registration to that officer. Sgt. Sidhu witnessed A being escorted back to PC Wright’s vehicle at 2:59 a.m. Sgt. Sidhu left the scene at 4:28 a.m. By then, he suspected that A had provided a false name. I find this was a reasonable suspicion given all of the circumstances, including the fact that A could not produce any identification, that A was a passenger in a vehicle fleeing a nearby shooting scene, and that the name given by A had come back clear.

ii. Police Constable Ledat (PC Ledat)

[40] PC Ledat and PC Wright arrived at the vehicle stop as back up for Sgt. Sidhu. On the way there, the pair heard about the shooting at Cameo Lounge from dispatch. When they arrived at the vehicle stop, PC Ledat noted that Cameo Lounge was a mere one hundred yards away. What he learned from Sgt. Sidhu (the Honda travelling at a high rate of speed from the direction of the Cameo Lounge and failing to stop; the demeanour of the occupants, and their admission that they had come from the scene of the shooting) caused him to formulate a suspicion that the occupants might have had some involvement in the shooting.

[41] PC Ledat approached the passenger side of the Honda, leaving the driver’s side to PC Wright and Sgt. Sidhu. A was entirely compliant. PC Ledat advised A that he was detaining him for investigation into the shooting at the Cameo Lounge. PC Ledat conducted both a pat down search and a cursory search of the vehicle in the interest of public and officer safety. In those first few moments, PC Ledat was uncertain about the involvement of A in the shooting if any; nevertheless, considering the potential of A being one of the shooters, PC Ledat advised A of his rights to counsel and provided him with a caution.

[42] Having located a satchel bag in the back seat, PC Ledat proceeded to place R in handcuffs while providing R with his right to counsel and a caution. R indicated that he understood. PC Ledat then asked R if he could search the rest of the Honda. R gave his consent to search the vehicle but advised PC Ledat that there would be replica firearms in the trunk which R used in making rap music videos. PC Ledat did not handcuff A.

[43] A advised PC Ledat that his name was Ernest Boateng. A provided a date of birth of November 26, 1996 and an address in Etobicoke. PC Ledat obtained R’s name from PC Wright and proceeded to run both names through CPIC and the TPS database. Whereas R was found to have a significant criminal history and was rated a high-risk violent offender, the search of Ernest Boateng’s name brought no results. This struck PC Ledat as odd; he proceeded to provide A with a caution on suspicion of obstruct justice and providing a false name.

[44] PC Ledat relied on the ICAD print out to assist in him making his notes later that morning. He did not note providing rights to counsel or caution. PC Ledat’s notes began at 2:57 a.m. and concluded at 3:20 a.m. when PC Mota took over the detention of both A and R. PC Ledat indicated that his note stating that A was placed in investigative detention at 3:20 a.m. was inaccurate; that was actually the time that A was placed under the control of PC Mota. His notes do not indicate a time that R was put in handcuffs or in investigative detention. PC Ledat failed to note the right to counsel and caution being provided to A. PC Ledat elected investigative detention over arrest because he didn’t feel that he had reasonable and probable grounds to make arrests. Although his practice would be to read the right to counsel and caution from the back of memo book, he did not do this on that occasion.

[45] PC Ledat had a clear recollection of giving rights to counsel while patting A down. At the preliminary inquiry, PC Ledat testified that he read those rights out of his memo book. It was only after reviewing the in-car video that he recalled giving A the caution and rights to counsel in a more informal manner. PC Ledat recalled providing rights to counsel to A even before A provided the name Boateng. At the preliminary inquiry, PC Ledat testified that he gave rights to counsel and caution at the curbside after checking the passenger seat of the Honda for weapons. The significance of the 3:20 a.m. entry in his notes was that PC Mota took control of both A and R; however, the in-car camera did not show anything of significance taking place at 3:20 a.m. Although PC Ledat stated that the purpose of the search of the Honda was public safety and to search for weapons, at the preliminary inquiry he had testified that police were looking for evidence to tie A and R to the shooting.

[46] PC Ledat elected to handcuff R because of his classification as a high-risk violent offender, for officer safety concerns, and because R admitted to having left the scene of the shooting. PC Ledat did not advise R of the consequences of the vehicle search. He did not advise R that he could speak to a lawyer about it or that he had a right to say no to the search. PC Ledat conceded that he would not have done the search of the Honda if R had not consented.

[47] I found PC Ledat to be a credible witness; however, I find that his evidence cannot support a finding that he provided a right to counsel and caution to A. First, quite obviously, there is no audio available of the interaction between PC Ledat and A at the vehicle stop to support his evidence; second, PC Ledat gave a different version of when and how he gave the rights to counsel and caution at the preliminary inquiry. Third, it was PC Ledat’s evidence at the preliminary inquiry that he always reads the right to counsel and caution from the memo book. Clearly he did not do that in this case. Finally, PC Ledat’s notes, which he claimed were in chronological order, do not indicate that any rights to counsel or caution were provided to A upon him exiting the vehicle or while sitting at the curbside. While I do not reject PC Ledat’s evidence entirely, I can afford it limited weight on the issue of whether A was advised of his rights to counsel and caution during the vehicle stop portion of the investigative detention.

iii. Police Constable Wright (PC Wright)

[48] I do find however, that both R and A were afforded rights to counsel and provided with an appropriate caution, in relation to the shooting at Cameo Lounge, immediately upon being placed into investigatory detention. I place great weight on the evidence of PC Wright. I found his evidence to be forthright and reliable. He did not understate or minimize the gaps and questions in the investigative record created by officers failing to utilize their microphones; he candidly admitted the shortcomings in his notebook; he did not ultimately contest the suggestion that he could have given formal rights to counsel and caution from his memo book while the two detainees were at the roadside. I entirely accept that he provided rights to counsel and caution to both A and R and that they would have both understood their jeopardy within moments of being detained. I accept that his notes are accurate; they were generally supported and corroborated by his independent recollection of events. There is nothing of note from the silent video that would contradict the substance of his evidence.

[49] The calculation of time of 45 seconds between the removal of the detainees from the Honda and their being moved further down the curb to allow a more fulsome search of that vehicle would have afforded plenty of time for the brief pat down search, the reading of rights to counsel and caution, and the inquiry about the contents of the Honda. PC Wright impressed me as candid; he admitted to the general frailties of memory over time; at the same time, I found his memory of events to be impressive. He offered a reasonable explanation for his notes being out of sequence and for the late entry. In my view, it is entirely understandable that copiously detailed and contemporaneous notes would be nearly impossible to maintain during a fluid, dynamic, and potentially dangerous situation such as the one which presented itself to police; the circumstances of the vehicle stop, the proximity in time and place of the crime scene, the sounds of police sirens, persons screaming, and the general tumult coming from the Cameo Lounge would have understandably left note taking as a secondary priority.

[50] I accept the near entirety of PC Wright’s evidence. I find that he provided meaningful rights to counsel and caution to R and A within moments of their detention. I am not persuaded that anything in his notebook contradicts his evidence on that point. Although it was practically impossible to allow for a private call to counsel at the precise moment that rights to counsel were actually given, I find that both R and A knew the jeopardy that they faced and that they had the right to say nothing. There is no evidence that either of them asked to exercise their rights to contact counsel. I also find that PC Wright gave formal text rights to counsel and caution to A in the back of the police vehicle no later than 3:20 a.m. shortly before turning A over to YRP. Whether he did that out of an abundance of caution or in order to have that recitation captured on tape hardly matters. I find that his decision to provide rights to counsel and caution a second time in a more formal manner does not undermine or leave me with any doubt that he provided rights to counsel and caution at the earlier time, albeit informally.

[51] I am not troubled by the fact that PC Wright, Sgt Sidhu, and PC Ledat all refer to 3:20 a.m. in their notes as the time when rights to counsel and cautions were provided, and/or when the two accused were placed in investigative detention. I am satisfied that the officers may well have prepared their notes after some consultation looking back retrospectively from the time 3:20 a.m., because it was at or about that time, that PC Mota took over the control of the vehicle stop and matters were turned over to YRP. The contents of the police notes to which the officers were taken in cross-examination and their overall testimony are generally consistent with the developments, activities, and times captured on the in-car video. I am certainly prepared to allow for inaccuracies and mistakes in these notes given that they were prepared either at the time or in the immediate aftermath of a violent crime and the investigation of an extraordinary traffic stop. I am certainly not prepared to find or infer any collusion, note padding, or doctoring on the part of TPS so as to make it appear that they afforded rights to counsel and cautions to the two accused, when, in fact, they were not given.

iv. Police Constable Mota (PC Mota)

[52] PC Mota arrived at the vehicle stop at approximately 2:56 a.m to take over control

[53] of the scene for YRP.

[54] At the roadside, PC Mota advised both R and A that they were being detained for further investigation relative to the shooting at Cameo Lounge. PC Mota directed the officers to continue the detention and to provide rights to counsel and caution to the two detainees. He confirmed R’s identification and obtained a history through CPIC. At 3:22 a.m., having seen what he believed to be firearms discovered in the trunk of the Honda, PC Mota determined that R was in breach of a weapons prohibition. R was cautioned and provided with rights to counsel in respect of that offence. R also remained a suspect in the shooting. Out of a concern for officer safety and to eliminate any means of escape or a weapons grab, and given the proximity of the vehicle stop to a violent crime scene, PC Mota had R handcuffed.

[55] PC Mota conducted a CPIC search on Ernest Boateng. When nothing came back from CPIC, PC Mota became suspicious that police had been given a false name. At 4:25 a.m., PC Mota arranged for PC Brown to take A back to the detachment. PC Mota left the scene of the vehicle stop at 4:43 a.m., escorting R back to the detachment.

[56] A was brought to the booking desk by PC Brown at 4:54 a.m. The booking procedure included providing rights to counsel and caution, assessment of the detainee’s medical status, and the removal of certain articles of clothing for safety reasons (laces and draw strings). There was no strip search; a strip search involves having the detainee bend over for a check of the genital area. A strip search would not take place in the booking area. Both accused were placed in cells.

[57] I found some problems with PC Mota’s evidence: he could not produce the scratch notes he made while in A’s cell and he had no recollection of what he might have asked A or said to him during the five minutes he was in the cell. PC Mota conceded that A was being treated like somebody who was under arrest. Indeed, at one point, PC Mota advised Detective Constable Hill that the current status of the detainees was that they were under arrest. PC Mota conceded that A was not free to leave the detachment until he gave his real identity to police; this was likely conveyed to A.

[58] PC Mota could not recall what Sgt. Sidhu told him about the guns being imitation. His notes refer only to the fact that “guns” were found by TPS in the Honda. He was nevertheless operating under the assumption that the guns were real. This was in spite of the fact that he would have seen the BB clips and CO2 cartridge either in or removed from the guns, and would not have transported them to the detachment unless and until they were put into a safe state for transportation.

[59] While in the police car at 4:29 a.m., R asked PC Mota, “what’s going to happen to me…for the fake guns?” and “Am I going to be held for bail for the fake guns?”. And then, at 4:34 a.m., R asked PC Mota, “Am I being arrested sir?” and “Are my charges still the same?”. PC Mota agreed that R was asking questions about his status within one hour of when rights to counsel and caution had been given to him.

[60] PC Mota entered A’s cell at 7:19 a.m. in an effort to obtain his true identification. A provided the name of “Rushawn Andrews” with a date of birth of November 26, 1997 and an address of 10 Humberline. PC Mota asked A for his correct name; he did not employ intimidation, threats, or inducements. Correct identification from A was required for the other officers to continue their investigation.

[61] On the whole, I found PC Mota to be credible and his evidence to be reliable. I accept that his first priority upon arrival at the perimeter of the crime scene was officer and public safety. I accept that he advised both R and A of the reasons for their detention. It is clear that he provided R with a caution and rights to counsel in the police car in respect of the weapons charge. His evidence contained some frailties but was, on the whole, internally consistent and corroborative of the officers involved in the investigation.

v. Police Constable Brown (PC Brown)

[62] After first being assigned to the parking lot of the Cameo Lounge, PC Brown was directed by PC Mota to transport the detainee “Boateng” (date of birth: November 26, 1996) to 4 Detachment. PC Brown learned from PC Mota that Boateng/A had been in a possible “crime vehicle” and was being investigated in respect of the Cameo Lounge shooting. Boateng/A was not under arrest. PC Brown took custody of Boateng/A from TPS at 4:21 a.m. The in-car camera clip from 4:27 a.m. captures PC Brown providing Boateng/A with rights to counsel and caution in respect of the shooting investigation “again”. Boateng/A stated that he understood. There is a muffled response by him to PC Brown’s question, “do you wish to call a lawyer now?”. PC Brown asks, “what’s that?”; Boateng/A appears to say, “no”. When PC Brown asks for confirmation by asking, “no?”, Boateng/A responds, “I don’t know”. When PC Brown asks for confirmation by asking, “You don’t know”, Boateng/A does not respond.

[63] Boateng/A confirmed to PC Brown that he understood both the caution and the secondary caution. PC Brown arrived at the detachment at 4:39 a.m. Due to safety and security concerns, the detainee’s cash and electronic key fob were taken from him and secured. There was no strip search. There were no threats, promises, or inducements used by PC Brown. Boateng/A was being treated like a person who was under arrest.

vi. Detective Constable Bell (DC Bell)

[64] DC Bell was detailed to assist in the identification of Boateng. He was provided with two other possible names for the detainee: Rushawn Andrews and Rushawn Anderson. DC Bell attended the cell block with Detective Constable Goddard. A admitted to lying to police about his identity. A suggested that police call his father “Raymond” and provided the officers a cell number. A then admitted that his name was Rushawn Anderson. Raymond confirmed A’s identity at 1:05 p.m. and later advised that he would attend the detachment with photo identification of A. When Raymond arrived at the detachment with A’s passport some time later, DC Bell was satisfied of A’s true identity.

[65] DC Bell was under the impression that A was under arrest for the shooting or for giving a false name. A needed to be properly identified before being released from the cell. DC Bell agreed that A confessed to police that he had given a false name.

vii. Detective Constable Goddard (DC Goddard)

[66] DC Goddard’s notes indicated that Rushawn Andrews (date of birth: November 26, 1997), a passenger in a Honda Accord, was detained for having given a false name.

[67] DC Goddard was originally briefed by Detective Constable Sedgwick at 6:20 a.m. He learned about the vehicle stop, the guns found in the Honda, and the investigative detention of the two detainees for weapons prohibition and providing a false name. This information grounded his suspicion that R and A were involved in the Cameo Lounge shooting. DC Goddard found it strange that R and A were not under arrest.

[68] DC Goddard was tasked with determining whether the guns seized were firearms under the Criminal Code and whether they had anything to do with the shooting. Most officers know how to prove a firearm safe and DC Goddard would expect that a seizing officer would do so. The guns were turned over to him at 8:00 a.m. by PC Mota; he cannot recall whether they were in one or two parts. At the time he simply assumed that they were firearms. PC Mota did not advise him that they had been proven safe. It was immediately obvious to DC Goddard upon inspection that the guns were imitation weapons which could not house or fire live ammunition.

[69] R was no longer “arrestable” once it was confirmed that the guns were imitation firearms. DC Goddard did not tell other officers to release R. DC Goddard passed on the information about the imitation weapons to homicide at some point. DC Goddard does not recall any discussion about testing for gunshot residue.

[70] DC Goddard attended the cells with DC Bell at 11:30 a.m. DC Bell furnished him with a Facebook photo of A. DC Goddard believed that A was in the cell under investigative detention for giving a false name. No rights to counsel or caution were given to A in the cell. A advised that he had originally given a false name because police had been rude to him. A then provided the name Rushawn Anderson (date of birth: November 26, 1997). By giving his real name, A was confessing to the offence of giving a false name. A review of Facebook information revealed that A also used the name of Rushawn Gohard. No threats, promises, inducements, oppression, or trickery were employed.

[71] The homicide unit was looking to interview A in respect of the firearms found in the Honda. At 12:30 p.m. however, homicide disengaged and turned A over to crime investigation. A was placed under arrest for obstruct justice, given his rights to counsel, a caution, and a secondary caution. DC Goddard told A that he was not free to go until he could produce proper identification. A then asked to speak to duty counsel; that call was made at 1:05 p.m.

[72] DC Goddard understood that R and A were being investigated for more than one thing at the same time. R and A were finally released unconditionally because there was no lawful reason to continue their respective detentions.

viii. Police Constable Kinsman (PC Kinsman)

[73] At 6:27 a.m. on April 3, 2017, Det. Cobor asked PC Kinsman to verify information on Ernest Boateng (date of birth: November 26, 1996). PC Kinsman located a TPS occurrence report containing a small variation of that name. The occurrence report referred to an attempted murder with Ernest Boateng as the victim. PC Kinsman attended A’s cell with PC Mota at about 7:15 a.m. PC Kinsman advised A that it would assist the process and his release from the cell if he provided his real name. A provided the name of Kwami Boateng and a contact person named Katrina Watson. PC Kinsman advised A that he was going to contact these persons for verification. Three minutes later, A advised that his name was Rushawn Anderson with a date of birth of November 26, 1997, an address of 10 Humberline Drive, and that his father was named Raymond. PC Kinsman passed on this information to Detective Napoleoni at the 8:05 a.m. briefing and had no further contact or involvement with A.

ix. Staff Sergeant Lambert (S/Sgt. Lambert)

[74] S/Sgt. Lambert was the booking sergeant on duty at the detachment the morning of April 3, 2017. The video from the booking desk area shows A being processed there at 4:43 a.m. S/Sgt. Lambert was given the name of Ernest Boateng to enter into the system. At some point, A’s name information was changed to Rushawn Anderson.

[75] The property items taken from A were a Blue Jays cap, $450 CAD, a hoody with laces, and track pants with drawstring.

[76] R’s property items taken were his DL, a hoody with laces, and $185.85 CAD.

[77] PC Brown advised S/Sgt. Lambert that A had been “arrested” for a shooting matter. Booking and searching a person and lodging a person is reserved for those under arrest.

[78] Det. Cobor advised him at approximately 5:10 a.m. that R was facing charges for breach of firearms prohibition. S/Sgt. Lambert understood that Det. Cobor was with homicide and that at some point, homicide took over the investigation. At 12:07 p.m. that afternoon, Det. Cobor concluded that police were not going to lay charges for attempt murder. At 1:40 p.m. both detainees were released unconditionally. The YRP information folder confirms that rights to counsel were given to both detainees.

x. Detective Napoleoni (Det. Napoleoni)

[79] Det. Napoleoni was the primary investigator into the Cameo Lounge shooting of April 3, 2017. Det. Napoleoni made the decision to release R and A from detention following interviews conducted by Det. Cobor during which it was determined that neither R nor A had any involvement in the shooting. Det. Napoleoni learned that R and A had been detained after a vehicle stop just south of Cameo Lounge. He understood that R and A had been arrested and brought to the station for weapons prohibition and obstruction of justice, respectively. As the homicide investigator, Det. Napoleoni was not interested in those charges; he simply assumed that the two had been provided a caution and rights to counsel in respect of those charges by other officers.

[80] Det. Napoleoni understood that neither R nor A matched the description of the shooter given by the witness. He understood that the Honda in the vehicle stop and the Mazda described by the witness were not a match. Det. Napoleoni learned that R and A had been fleeing the scene at a high rate of speed, that their vehicle had run a red light, that A had given a false name, and that replica firearms were found in the vehicle. There was no evidence that either was a suspect; however, Det. Napoleoni was uncertain what involvement they might have had in the shooting because there are different modes of involvement in a shooting. For that reason, Det. Napoleoni told Det. Cobor to caution both individuals. It is police practice to caution an individual and provide rights to counsel. It was after viewing the security videos from the Cameo Lounge later that afternoon, that Det. Napoleoni realized that R and A were both “arrestable” for the shootings.

xi. Detective Cobor (Det. Cobor)

[81] Det. Cobor belonged to the homicide squad of YRP on April 3, 2017. He was tasked with interviewing first R and then A.

[82] During a briefing at 4:45 a.m., Det. Cobor learned that the two had been occupants of a Honda fleeing the scene of the Cameo Lounge shooting, that replica firearms had been found in the Honda, and that the passenger had provided the name of Ernest Boateng to police. That passenger was under detention for obstruct justice. Det. Cobor also learned that the shooting suspect had been described by a witness as a 5’7” Somalian male who had fled the scene in a 2003 or 2004 Mazda with three other persons.

[83] R was interviewed first. At the commencement of the interview, Det. Cobor provided R with rights to counsel and a caution in respect of the shooting and for potential murder. Det. Cobor did this out of an abundance of caution; the investigation was in its early stages and there was limited information.

[84] R advised Det. Cobor that he had had dinner with his girlfriend that previous evening before going to the Cameo Lounge with A. The pair heard shots and fled the scene in R’s Honda. Neither was involved in the shooting. After speaking with his lawyer, R essentially declined to answer any more questions.

[85] After that interview with R, Det. Cobor believed that A was simply a witness to the shooting. A did not match the description of the shooter. A had been a passenger in a Honda, not in a Mazda. Prior to commencing the interview with A, Det. Cobor did not provide rights to counsel, a caution or a K.G.B. warning because he did not feel that A was involved in the shooting in any way.

[86] Det. Cobor believed what R had told him. Det. Cobor also believed that cautioning A might have “scared him off.” Det. Cobor believed that A had been arrested for obstruct justice and assumed that he had been given his rights to counsel and caution.

[87] A advised he heard more than three shots outside the Cameo Lounge; he saw nothing but heard screaming. Det. Cobor asked about A’s relationship with R and about A’s girlfriend just to understand the situation and because the investigation was still at an early stage. When Det. Cobor suggested to A that, “It would help me believe you”, A was still not considered a suspect. Det. Cobor was aware from the outset that the shootings may have been gang related but that is not why Det. Cobor asked both A and R about their tattoos. Det. Cobor asked R about his association with Rexdale and community housing projects because learning about R would assist in the investigation. Det. Cobor knew about R’s previous involvement as a victim in a shooting. Det. Cobor asked R what his friends called him. It entered Det. Cobor’s mind that R was involved in gang activity. Asking him questions about this was a way to get more out of him as a witness. When Det. Cobor stated during the interview to R that he wanted to “exclude you that you have anything to do with this”, he meant to exclude him as having value to the investigation as a witness.

[88] The interview with R lasted from 8:00 a.m. until 11:19 a.m. A was brought in for his interview at 11:27 a.m.

[89] After his interview, A was returned to his cell because he was still under arrest for the obstruct charge. Det. Cobor believed that R was being held for weapons prohibition. It would have been unlawful to hold R and A for attempt murder because they were not suspects. R and A were unconditionally released early that afternoon. They were not considered suspects until the Cameo Lounge security video was reviewed.

xii. Detective Constable Bailey (DC Bailey)

[90] At the direction of Det. Napoleoni, DC Bailey managed to seize the Cameo Lounge security video. The footage needed to be extracted and uploaded; he was only able to begin his review of the footage at about 2:00 p.m. One camera had captured two shooters emerge from east side of Cameo Lounge and move towards the front of the building. The shooters then went back towards the east side. Another camera picked up images passing by followed by a vehicle being powered up and leaving Cameo Lounge, turning out onto Scholes Road, and into the vehicle stop. His initial belief was that this vehicle contained the 2 shooters. The security videos showed other vehicles leaving the parking lot as well.

The Rights to Counsel – s. 10(b) of the Charter

[91] For the reasons I set out above, I am satisfied that both R and A received proper rights to counsel and a caution with respect to the shooting at Cameo Lounge within a reasonable time after being removed from the Honda. I rely upon and accept the evidence of PC Wright and PC Mota in that regard. In addition, I find that R was properly given his rights and a caution with respect to breach of weapons prohibition; this was only possible once police obtained R’s profile from CPIC. PC Mota’s uncontroverted evidence is that he provided R with a caution and rights to counsel for the weapons breach shortly after receiving the CPIC information. While it should have been apparent to PC Mota that the guns were imitation weapons, in the pressing circumstances of a murder investigation, and given R’s profile as a violent offender, the possibility that the guns would have still been capable of discharging ammunition could not be dismissed until the guns were thoroughly inspected. In any event, R was still properly under investigative detention for the Cameo Lounge shooting.

[92] In respect of A, in addition to the rights to counsel and caution for the shooting provided at the roadside by PC Wright, I am satisfied that he was provided rights to counsel and caution for the shooting by PC Wright from the formal script in the police memo book at around 3:20 a.m. It is also evident that those rights to counsel were repeated by PC Brown in the police car at 4:27 a.m. It appears that A was not provided his rights to counsel in respect of the obstruct justice and providing a false name until 11:30 a.m. when he was arrested in the cell by DC Goddard. There is some evidence from PC Ledat that a caution was given in respect of that offence. Even if I were to accept that evidence, it falls short of rights to counsel. This is concerning since many of the officers involved in booking, housing and investigating A at the detachment were under the impression A was under arrest for obstruct justice and/or providing a false name. I am not satisfied that A was afforded rights to counsel for these offences until he was formally placed under arrest at 11:30 a.m. This was not within a reasonable period of time after detention; his s. 10(b) rights were infringed.

The Reasons for Detention – s. 10(a)

[93] I am satisfied that both R and A were promptly informed by PC Wright and subsequently PC Mota that they were being detained for investigation into the Cameo Lounge shooting. In the case of R, I am satisfied that PC Mota provided reasons for his detention in the police cruiser within a reasonable period of time after the guns were discovered and the CPIC information was received. In this dynamic and fluid situation, a number of different officers were doing their best to keep up with developments. I find that police were proactive in updating R on the extent of his jeopardy. Although R appeared to express some level of confusion as to the exact charges he was facing when interacting with PC Mota in the back of the police cruiser, I am not prepared to infer from this that he had not been properly informed of his jeopardy. I am not prepared to speculate why his questions to PC Mota focused solely on the imitation guns possession; this may have been an attempt to distance himself from the shooting. It may have been because he wanted to emphasize to the officer that the guns were imitation weapons. I am satisfied that R was provided with the reasons for his detention promptly and that he experienced no breach of his s. 10(b) rights.

[94] I am not satisfied that A was promptly advised that he was being detained for obstruct justice or providing a false name. There appears to be no note of it and no officer testified that those reasons were conveyed to A until he was actually placed under arrest for it by DC Goddard in the cell at some time after 11:30 a.m. Officers certainly understood that A was facing jeopardy for obstruct justice or providing a false name. PC Mota became suspicious that A had provided a false name shortly after his arrival at the vehicle stop when the CPIC check came back negative. PC Mota certainly maintained that suspicion when he turned A over to PC Brown at 4:21 a.m. Det. Cobor understood that A was being detained for this offence at the briefing at 4:45 a.m. DC Goddard gained the same understanding during a briefing at 6:20 a.m. Prior to the interview conducted by Det. Cobor of Homicide, almost the entire police interaction with A focused on obtaining his true identity. Indeed, PC Kinsman obtained the name of Rushawn Anderson from A at 7:15 a.m. after he had advised A that he would be contacting Kwami Boateng and Katrina Watson to verify his true identity.

[95] I find, therefore, that police did not promptly inform A of this reason for his detention. Section 10(a) demands that a detainee be informed of the “reasons” for detention. Since one of the reasons for his detention was not conveyed to A promptly, he experienced an infringement of his s. 10(a) Charter rights.

Voluntariness

[96] The burden is on the Crown to prove a statement voluntary beyond a reasonable doubt. In R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 170, the Supreme Court provided an overview of the law regarding voluntariness:

….there are several factors to consider in determining whether there is a reasonable doubt as to the voluntariness of a statement made to a person in authority, including the making of threats or promises, oppression, the operating mind doctrine and police trickery. Threats or promises, oppression and the operating mind doctrine are to be considered together and “should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule” (Oickle, at para. 63). On the other hand, the use of police…trickery’ to obtain a confession “is a distinct inquiry …[given that] its more specific objective is maintaining the integrity of the criminal justice system” (para. 65).

[97] In the present case, there is no evidence of any threats, intimidation, or oppression used by police. I am satisfied that R had an operating mind throughout his detention; both police evidence and the video and audio footage attest to his level of alertness, responsiveness and general lucidity. Det. Cobor provided a caution and rights to counsel at the commencement of his interview with R, making it clear to him that he was being investigated as a possible suspect in the shooting of the victim at the Cameo Lounge. It is abundantly clear from his demeanour and answers during the interview that R was coherent, alert and fully aware that he was being asked to give a statement, and that was prepared to invoke his right to say little to nothing in reply. Given that I have found that R received rights to counsel and a caution in respect of both the Cameo Lounge shooting and the breach of weapons prohibition on several occasions from several officers, immediately upon being detained, and on other occasions throughout his detention, there is no basis for any reasonable doubt that all of the statements and utterances made by R up to the time of his release were voluntary.

[98] The Crown has satisfied me beyond a reasonable doubt of the voluntariness of all utterances and statements of A commencing at 2:39 a.m. (the beginning of the vehicle stop and the interaction with Sgt. Sidhu) up to the time that A provided his real name to PC Kinsman and PC Mota in the cells at approximately 7:15 a.m. Prior to that time, there were no inducements, no police trickery, no deception, or confusion that would have deprived A of an operating mind. I am not satisfied that his statement “I don’t know” when asked by PC Brown if he wished to speak with a lawyer constitutes such a level of confusion that A did not have an operating mind. That is not an inference that I would draw. Emitting an “I don’t know” is a common expression used by people who are variously uncooperative, indifferent, resigned, defiant, guarded, careful, or even wily and cagey. While it can be evidence of a lack of comprehension or insight, I do not accept that it was in this situation. There was no evidence that A was intoxicated, incoherent, intimidated, overawed, threatened, or felt compelled to give a statement or to answer questions. I am satisfied that he had been given sufficient rights to counsel, a caution, and was advised of the reason for his investigative detention sufficient for him to fully understand his jeopardy. His mind was certainly operative and sharp enough to assist in locating vehicle ownership documentation and to provide a false name to Sgt. Sidhu at the vehicle stop a short time before. If he had said his name was Donald Trump or John the Baptist, one might have been left with a concern about his mental state and fitness. Instead he used a false name but one with which he had some apparent familiarity. I find that he had an operating mind.

[99] I am not satisfied, however, that A’s confession to PC Kinsman at 7:15 a.m. was voluntary. It is clear that he was advised that he would not be released from the cell until he gave up his real identity. This was an inducement. Moreover, A had not received his rights to counsel in respect of obstruct justice or providing a false name. While a caution was probably given by PC Ledat earlier that morning, I am not satisfied that A would have properly understood his jeopardy for these offences at the time of providing his real name to PC Kinsman. I am not satisfied that he would have had an operating mind, one capable of distinguishing his jeopardy for obstruct justice from his jeopardy for the shooting. Indeed, when he confirmed his identity later in the morning to DC Goddard, he was placed under arrest for obstruct justice and provided with his rights to counsel, he did exercise his right to contact duty counsel. Even by 11:30 a.m., A had not been provided rights to counsel on the obstruct charge. DC Bell was certainly under the impression that A would not have been free to go unless and until he provided his real name. I find that A would have remained under that same impression and therefore influenced by that inducement. I am not satisfied that either his “confession” to PC Kinsman at 7:15 a.m. or his “confession” to DC Goddard at 11:30 a.m. were voluntary. They are not admissible as evidence at trial.

[100] I find that Det. Cobor’s interview of A requires a distinct analysis for voluntariness. Unlike with the interview of R which immediately preceded it, Det. Cobor neither cautioned A nor afforded him rights to counsel. That is not fatal. I have already found that A had been given his rights to counsel and caution in respect of the shooting on at least two occasions. A would have well understood that aspect of his jeopardy prior heading into the interview room. The problem with voluntariness arose because Det. Cobor advised A, specifically, that A was only being investigated as a witness. This assurance was given almost immediately at the commencement of the interview:

Det. Cobor: So I want to speak to you as a witness about the shooting that happened at the Cameo, okay? (page 4, lines 9-11 of the Audio Taped Statement of Rushawn Anderson taken on April 3, 2017, Exhibit “E”).

[101] I find that this approach by Det. Cobor constituted trickery. The law is clear that statements or confessions obtained by police trickery must be the subject of a distinct inquiry: see R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 65.

[102] In R. v. Rothman, [1981] 1 S.C.R. 640, at p. 697, Lamer J. warned that courts should be wary not to unduly limit police discretion in the investigation of crime;

The investigation of crime and detection of criminals is not a game to be governed by the Marquees 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.

[103] For reasons set out below under my arbitrary detention analysis, I have already found that there existed reasonable grounds to believe that a crime had been committed, and that R and A were involved in it. Based largely on that, it cannot follow that any reasonably informed officer like Det. Cobor would honestly believe that A was a person of interest only as a witness. The fact that A had been a passenger in a vehicle, which, moments after a shooting, was heading away from the crime scene at a high rate of speed while disobeying a traffic light, coupled with R and A both admitting that they had just left the scene, taken together with the fact that A had given a false name to police during the vehicle stop, would have led any clear-thinking person to believe that both R and A were suspects. Det. Cobor struck me as a clear thinking person and impressed me as a wily and experienced officer and interviewer. I have no doubt that he maintained a reasonable suspicion, as all officers did, that R and A were involved in the shooting.

[104] The fact that a witness had described the shooter as Somalian and had observed the shooter enter into a Mazda in the company of three other people should not have deflected suspicion from either of the co-accused given the totality of the circumstances. Det. Cobor would have been alive to the possibility of witness inaccuracies, mild confusion, or generalizations. Det. Cobor must have appreciated that the witness had described a shooter who matched the physical stature of the detainee before him. Det. Cobor would have understood that many Somalians have dark skinned complexions similar to that of A’s. Indeed, there was nothing of substance from the witness as to why he or she believed the shooter to be definitively Somalian. Det. Cobor would have appreciated that the witness may have been influenced by the fact that Cameo Lounge was frequented by members of that community or that one of the victims may have been Somalian.

[105] I do not accept Det. Cobor’s evidence that he left the interview with R believing that neither R nor A had anything to do with the shooting. Having regard to the totality of the circumstances, I find that there is nothing that came out of the interview of R which could have attenuated an objective officer’s suspicion of A’s involvement in the case. I also do not accept the Det. Cobor believed what R had told him during that interview so thoroughly that he was drawn to the conclusion that A and R had nothing to do with the shooting. The overall content of the interview with R does not support that as a rational conclusion on the part of the officer. If anything, I find that his suspicion of the involvement of R and A in the shooting would have been piqued, not attenuated by the rather flimsy account offered by R.

[106] The interview between Det. Cobor and R makes it clear that after Det. Cobor had given R his rights to counsel and caution for murder, R effectively clammed up. Det. Cobor was candid in admitting that it played upon his mind that reading a similar caution to A might well have had the same effect. I find as a fact that getting A to talk, not as a witness, but as a primary suspect, was foremost in Det. Cobor’s mind. Having just concluded an unfruitful interview with a suspect during which a caution effectively shut down the interview, Det. Cobor found it preferable to change tactics with A. That is evident from both his approach and the content and purpose of his questions. The initial portion of the interview with A reveals a high level of suspicion on Det. Cobor’s part that he was dealing with a suspect. At page 5 of Exhibit “E” there is the following exchange:

Det. Cobor: Okay. So, from what you’re telling me is you’re not involved in any way in the shooting Mr. Anderson: No Det. Cobor: Okay. Are you sure about that? Mr. Anderson: Yes, I’m sure.

[107] That is not the kind of exchange one would expect to see at the beginning of a witness interview. Similarly, the fact that Det. Cobor asked A to confirm that R was driving “the Mazda” serves as proof that Det. Cobor considered A to have been in the vehicle described by witnesses at the scene. Det. Cobor knew by that time that witnesses had identified a Mazda as being the shooter’s getaway vehicle. At the conclusion of the interview, Det. Cobor’s suspicions about A seem not to have abated. At p. 31, he asked:

All right. Is there anything else I need to know from you …..about this incident? Any - anything that you – ‘cause, essentially what you’re telling me – telling me is that, I had – I had nothing to do with this, I didn’t see anything. (Emphasis added)

[108] Witnesses do not having anything “to do” with a crime. They are observers, not “doers”. In posing this question in this manner at the conclusion of the interview, it is plainly obvious that the primary purpose of the interview had been to ascertain A’s involvement in the shooting. Thus, at both the beginning and end of the videotaped statement, Det. Cobor was probing A’s evidence for veracity, asking him if there is anything else to be added, or how else it could be that A’s story was “believable.” This would have been a curious and inappropriate tactic to employ on a witness facing no jeopardy for murder.

[109] Moreover, I am unpersuaded that questions about where and with whom A had had dinner that evening, his relationship with R, whether his girlfriend was working as an escort, what he did on a day to day basis, who he played basketball with, or the clothes he was wearing on the evening in question, would be relevant or even helpful had A been considered to be solely a witness. Had Det. Cobor considered A to be merely a spectator/witness, such questions would not have been posed. As well, it is telling that Det. Cobor asked A about the pellet guns. If, as he said, Det. Cobor accepted the evidence and explanation of R on this and other subjects, why would he need to seek corroboration from A?

[110] The problem with Det. Cobor’s approach to the interview with A is that it can be reasonably construed as an assurance to A that he was not being implicated in the shooting, and that whatever he said would not be used towards that end. In effect, it recast his jeopardy. This was a clear form of inducement. In my view, Det. Cobor crossed the line from investigative tactic to trickery. In so doing, he created an environment within which A, who was very much a suspect, was induced by the assurance that he faced no jeopardy into giving a compromising statement, or at least one which could be used to illuminate inconsistencies in his alibi or challenge the credibility of a defence witness at trial.

[111] I find that this type of trickery would be shocking to the community. It is one thing for a person to be told by a peace officer that he is being looked at as a witness, a victim, and an offender simultaneously. At least then, the person would reasonably comprehend that the investigation was ongoing and that his role in the matter was as yet undetermined. That would play on any reasonable person’s decision whether or not to give a statement. It is quite another matter to effectively assure a person that they are not a suspect but merely a witness. That inducement, that promise, that assurance (aside from the fact that it was false), might well motivate a person to state things he otherwise might not state; especially if providing a statement as a means of cooperating with police was a prerequisite to being released from investigative detention. I find that A was unfairly induced into giving the statement to Det. Cobor. The statement was not voluntary and is therefore inadmissible at trial.

Arbitrary Detention: s. 9 of the Charter

[112] Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained. A detention will not be arbitrary if it is lawful. A common law investigative detention allows police to detain a person for investigation where there are reasonable grounds to suspect in all of the circumstances that the person is connected to a particular crime and that such detention is necessary. That investigative detention must be brief in duration and conducted in a reasonable manner: see R. v. Barclay, 2018 ONCA 114, 44 C.R. (7th) 134, at para. 21.

[113] In R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 27 and 47, the court described “reasonable grounds to suspect” as engaging the reasonable possibility, rather than probability of crime. As stated by Fuerst J., in R. v. Wong, 2017 ONSC 1501, at para. 65, “While still an objective standard based on objectively discernible facts, it is more than an educated guess or a hunch, but less demanding than reasonable and probable grounds to believe.”

[114] A permitted duration of an investigative detention is determined by considering whether the interference with the suspect’s liberty by his continuing detention was more intrusive that was reasonably necessary to perform the officer’s duty, having particular regard to the seriousness of the risk to public or individual: see Barclay at para 27; and R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, at para. 36.

[115] The purpose of the brief detention contemplated under the investigative detention power is to allow the police to take investigative steps that are readily at hand to confirm their suspicion and arrest the suspect or, if the suspicion is not confirmed, release the suspect. While the word “brief” is descriptive and not quantitative, it does have temporal limits and cannot expand indefinitely to accommodate any length of time required by the police to reasonably and expeditiously carry out a police investigation: see Barclay, at paras. 29 and 30.

[116] At para. 31 of Barclay, the Court of Appeal, while conceding that the permitted duration of investigative detention is case-specific, nevertheless set out some of the relevant factors that should be considered:

• The intrusiveness of the detention;
• The nature of the suspected criminal offence;
• The complexity of the investigation;
• Any immediate public or individual safety concerns;
• The ability of the police to effectively carry out the investigation without continuing the detention of the suspect;
• The lack of police diligence;
• The lack of immediate availability of the required investigative tools.

[117] There is no doubt that the vehicle stop effected by Sgt. Sidhu was lawful. Sgt. Sidhu witnessed the Honda travel through a red light at a high rate of speed. This was prima facie a highway traffic offence. R was therefore lawfully detained in his vehicle by the roadside while Sgt. Sidhu approached it and requested a driver’s licence, insurance, and ownership information. A vehicle stop was entirely necessary; how else would police control traffic, issue tickets, and enforce safety on the roadways, if they did not have the power to stop drivers who were observed to have violated the rules of the road?

[118] In R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214, at paras. 18-21, and R. v. Johnson, 2013 ONCA 177, 297 CCC (3d) 87, at paras. 34 and 35, the Court of Appeal left open the question whether at a vehicle stop, both the driver and the passengers should be considered automatically detained. Instead, each case should be resolved on a general fact-specific approach to determining detention. Here, I cannot find that there was any detention of A upon the initial vehicle stop. A simply happened to be a passenger in a vehicle stopped for a lawful reason (a Highway Traffic Act offence).

[119] The question of psychological detention calls for a broader perspective according to the factors identified in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44; the circumstances giving rise to the encounter with police; the conduct of the police; and the circumstances and conduct of the individual. I cannot conclude that A experienced psychological detention at the vehicle stop. This was a vehicle stop for a Highway Traffic Act offence; R was exclusively in control of the Honda; Sgt. Sidhu initially engaged only with R; as a passenger, A was constrained by nothing more than a seat belt, and what would have been a person’s natural inclination to remain with one’s companion and within the vehicle in which one is being conveyed.

[120] This vehicle stop for a Highway Traffic Act offence merged quickly into an investigation into a possible stolen vehicle. I accept that Sgt. Sidhu reasonably formed the belief that the Honda might have been stolen. The manner in which the Honda had been operated, the demeanour of the driver, and his inability to produce ownership documentation promptly raised a well-grounded and reasonable suspicion of vehicle theft, sufficient to justify Sgt. Sidhu undertaking some investigation. This included asking the pair where they were coming from and requesting identification from A, who could reasonably be viewed as a co-suspect in a vehicle theft investigation. In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45, the Supreme Court of Canada clarified that a police officer may detain an individual to investigate a criminal offence if there are reasonable grounds to suspect, in all of the circumstances, that the individual is connected to a particular crime and that such detention is necessary. I find that Sgt. Sidhu was reasonable, measured, and civilized in his approach. There is no evidence that he was aggressive, threatening, or intimidating. I accept that he requested identification from A but did not demand it. There is no evidence that A felt physically or psychologically constrained by the request. There is no evidence that A formed any belief that he was compelled to answer the officer or that he was not free to go if he so chose. Unlike in Harris, there was no demand to put his hands out in front of him or in plain view. The language of detention was completely absent. There was no arbitrary detention of A either for the vehicle stop or during the fleeting investigation into whether the Honda was stolen.

[121] I accept that it was not until sometime into the interaction that R advised Sgt. Sidhu that the pair was fleeing a shooting at the Cameo Lounge for safety reasons. Although Sgt. Sidhu did not immediately believe this to be true, in the moments that followed Sgt. Sidhu receiving the ownership documentation, he heard from dispatch of the shooting at the adjacent Cameo Lounge. I am persuaded that Sgt. Sidhu had both subjective and objective reasonable grounds to suspect that a crime had been committed at the Cameo Lounge and that R and A may have been implicated in it. The following objectively discernable facts each played a part in Sgt. Sidhu (and PC Ledat and PC Wright, who were briefed by Sgt. Sidhu) forming the reasonable belief that a crime had been committed at Cameo Lounge and that R and A had some connection to it:

• There had been a confirmed shooting at the Cameo Lounge which was across the parking lot adjacent to the vehicle stop;
• The Honda had come from the direction of the Cameo Lounge at a high rate of speed and disobeyed a traffic light moments after the nearby shooting. This is consistent with how one would expect an offender to act in the immediate aftermath of a wrongdoing: leave the scene of a crime quickly and without regard to the niceties of the rules of the road;
• The driver of the Honda appeared nervous during the vehicle stop; his hands were shaking and trembling, while the passenger A was the complete opposite, relaxed and reclined back in his seat. While the demeanour of R might be viewed as one that a person interacting with police after a traffic offence might display, it is equally as consistent with a person who is in fear of apprehension for a more serious offence. Meanwhile, the calm and relaxed demeanour of A was certainly not one that would be expected to see in a person who was fleeing for his safety;
• When questioned about where the pair were coming from, R conceded that it was from the Cameo Lounge; there had just been a shooting and the pair were fleeing for their safety. Although Sgt. Sidhu did not at first believe this, I find it reasonable that Sgt. Sidhu’s suspicion was heightened by the fact that neither R nor A conveyed this information with Sgt. Sidhu at the outset of the vehicle stop. This is the kind of thing an innocent person fleeing for his safety would tell a vehicle stop officer immediately in order to explain and justify his traffic violation.

[122] I find that this combination of factors fully justified both the imposition of an investigative detention on both R and A. Certainly, the enormity of a shooting resulting in possible fatalities superseded the less serious Highway Traffic Act and stolen vehicle offences. Still, that does not serve to diminish or erode the lawfulness and reasonableness of, or the justification for, both the very brief initial detention of R for the highway traffic offence, or the closely following investigation into the potential vehicle theft. I find that the three officers had objectively reasonable grounds upon which to place both R and A under investigative detention for the shooting at Cameo Lounge.

[123] The evidence certainly establishes that R was compliant; he did not attempt to flee the vehicle stop. A did not attempt to flee from the Honda. Certainly, trembling hands can be a sign that a person is in fear for his safety; people react differently under stress. It would be unusual for a person involved in a shooting to admit that he had just come from the scene of the crime. R and A could have been witnesses or potential victims. All of those facts were true and they would tend to diminish the likelihood that R and/or A were the shooters.

[124] Nonetheless, the facts playing on the minds of the officers as they formed the suspicion that R and A might have been involved in the shooting were equally true. Reasonable grounds to suspect is not a standard of high probability; it is something beyond a hunch. In my view, there were signs pointing irrefutably to the involvement of R and A in a crime which had taken place in very close proximity in time and space to the vehicle stop. I accept, as genuine and compelling, Sgt. Sidhu’s recollection of his feelings at the time; his suspicions outweighed any doubts raised by those things that were inconsistent with the possibility that R and A had something to do with the shooting. I am not persuaded that the possibility that R and A were merely bystanders, witnesses, or fleeing targets, was so obvious that it should have reasonably served to erode that genuine suspicion. There is nothing unusual or distinct about a number of possibilities existing against the background of circumstances that was current, dynamic, and evolving. The fact that one possibility cannot be ruled out does not make a competing conclusion any less compelling. On balance, and taking into account all of the circumstances, I conclude that Sgt. Sidhu, PC Ledat, and PC Wright, had reasonable grounds to detain R and A in respect of the shooting at Cameo Lounge.

[125] Although the notes of the officers indicate that R and A were placed under investigative detention at 3:20 a.m., I accept this as not being possible. I accept that R and A were placed under investigation detention by PC Ledat and PC Wright at an earlier time and within moments after both R and A were asked to exit the vehicle. I also accept as well that both accused were both advised of this fact, the reasons for it, and provided some form of rights to counsel and caution in the immediate moments after they did so. The detention at the vehicle stop for the Highway Traffic Act offence, the vehicle theft, and the Cameo Lounge shooting was not arbitrary.

[126] I have found that the initial vehicle stop was justified, extremely brief, reasonable, and proportional. I conclude that there was no arbitrary detention for that vehicle stop. However, that first detention soon gave way to the far more serious and lengthy investigative detention for the shooting at the Cameo Lounge. I find that the investigative detention into which R and A were placed for murder and/or attempt murder effectively began from the moment that Sgt. Sidhu, PC Ledat, and PC Wright removed the two accused from the vehicle and began the pat down searches.

[127] For both R and A, the investigative detention soon became intrusive and prolonged; after they were removed from the Honda vehicle, officers conducted a pat-down search; they were made to sit on the curb, handcuffed, escorted them to police vehicles, and then back to a police detachment. Both were paraded in the booking area, had their property taken from them and then each spent several hours in police cells. Both were subjected to interviews by police.

[128] The suspected criminal offence was murder involving a handgun. This is as serious as an offence as there is. The court cannot lose sight of this fact when considering the length of the detention. Issues of public safety come into play whenever there are crimes involving firearms discharged in public places. As stated by the Supreme Court of Canada in R. v. Clayton, 2007 SCC 32, [2007] S.C.J. No. 32, at para. 108:

The importance of the public purpose is manifest. This was not an investigation of a garden variety crime. The investigation was prompted by a gun call, which engages fundamental issues of public peace and public order. Neither the public nor the police can be expected to tolerate guns flourished or waved about in a crowded public place.

[129] The investigation was enormously complex. YRP and TPS both quickly became involved. There had been a shooting outside of a busy night club. There were multiple victims, multiple gunshots, possibly multiple shooters, and suspected fatalities. There was concern about gang involvement. There were numerous witnesses. People and vehicles were fleeing the scene. There was a vehicle stop on a Honda vehicle effected within 100 yards of the night club, involving persons whose connection to the shooting was uncertain. Hours after the shooting, police had yet to locate any person or vehicle fitting the descriptions provided by witnesses (Somalian and a black/blue Mazda). Police learned of the existence of security videos at the Cameo Lounge but were unable to gain the cooperation of the club’s owner to access them. The downloading of the security camera videos for viewing required the services of a technician; that footage could not be viewed until mid-afternoon. With R and A being held in investigative detention, the Honda had to be removed from the scene of the vehicle stop and secured. To this I would add that, continuing under the overarching murder investigation, the police were continuing to hold R and A for the less serious offences of breach of weapons prohibition and obstruct justice, respectively. These sub-investigations were inextricably linked to the murder investigation and added a layer of complexity to it.

[130] The ability of police to effectively carry out the investigation required some extended detention of A owing to the fact that he had given a false name. It would have been unwise and irresponsible for police to release a potential suspect without obtaining a positive identification on him. Had A been released as Ernest Boateng, or as a person of unknown or unconfirmed identity with no known address, it would have been nearly impossible for police to locate him should the post-release course of the investigation produce reasonable and probable grounds to arrest A. It was reasonable in these circumstances to detain A while this portion of the investigation went forward.

[131] As for R, the fact that imitation weapons were found in the trunk of the vehicle added a layer of complexity and uncertainty to the investigative detention. Until those weapons were proven safe and it was confirmed that they could not house or discharge live ammunition, there remained the possibility that they had been used in the shooting. This made it all the more pressing for police to investigate the imitation weapons and search the vehicle. The facts remained that R had been driving a vehicle which fled the scene of a violent crime scene; a satchel had been found in the back of the vehicle; R was under a weapons prohibition; he was classified as violent offender; and the investigation had not led to the apprehension of any person matching the description of the shooter or of the “Mazda”. There is no doubt that R remained a prime suspect, and that his involvement in the shooting remained a possibility. While R did not fit the description of the shooter offered by a witness, the early indications were that there were multiple gunshots which could realistically mean that there were multiple shooters.

[132] I can find no lack of police diligence here up to a certain point; this was a murder investigation. The crime scene straddled the jurisdictions of two police services. Police attended the scene within a reasonable period of time. The investigation at the Cameo Lounge and at the vehicle stop were taking place simultaneously. Witnesses needed to be interviewed, evidence sought. Sgt. Sidhu, PC Ledat, and PC Wright converted the vehicle stop into an investigative detention on the shooting within a few minutes. Police ran the information on R and Ernest Boateng within minutes of receiving it. R and A were turned over to PC Mota of YRP less than one hour after the vehicle stop.

[133] The police had some of the investigative tools they required from the outset. Having said that, the investigation was stalled pending the apprehension of the suspected shooter and the location of the involved vehicle as described by witnesses, the viewing of the security video, the confirmation that the imitation weapons could not have served as firearms, and the positive identification of A.

[134] However, the case law is clear that investigative detention must be brief. While police were hampered by the complexity of the investigation, the uncertainty about the identity of A and fact that no primary suspect had been apprehended, R and A’s s. 9 Charter rights were in play. The two accused remained under investigative detention. A kind of legal limbo existed; while they were not under arrest, neither were they free to go. That situation could not legally be permitted to persist for long; police had to either arrest the detainees and prepare them for a bail hearing or let them go.

[135] In the case of R, police had determined, if not definitively than at least initially, that the guns were imitation. They had the guns in their possession. They did not pose a risk to officer or public safety. R had been searched for weapons. The vehicle had been searched for weapons. The Cameo Lounge shooting scene was soon brought under police control. They had R’s identity and address. The investigation could carry on without the need to hold R in investigative detention. While he did not match the description of the shooter provided by a witness, there remained the possibility that there had been multiple shooters or that he had been an accomplice.

[136] The case of A is more complex. He had yet to be identified; he was a possible suspect in a murder investigation which, during the period of A’s investigative detention, had not lead to the identification, whereabouts, or apprehension of the shooter. A had provided police with the name Ernest Boateng which could not be verified as valid through routine police checks. It would have been not just ill advised and highly irresponsible to release a suspect without obtaining a positive identification on him. If the investigation uncovered evidence linking A to the shooting and police had let him go free without obtaining his name and address, the police would have had no practical way to locate him. Common sense tells us that part of an investigation into a potential homicide demands obtaining verifiable identities of all suspects. This undoubtedly applied to A, who had admitted to having been at the scene and matched, at least in terms of stature, the description of the suspect shooter as described by the witness.

[137] The police cannot use the investigative detention as an excuse for holding suspects while an officer carries out other aspects of a criminal investigation: see R. v. McGuffie, 2016 ONCA 365, (2016) O.R. (3d) 643 at para. 38. This rule has to be balanced, however, against the officer’s duty to conduct an investigation of a serious crime and a consideration of the risk to the public if a real suspect is released from investigative detention prematurely. And, as stated by Code J in R. v. Graham, 2018 ONSC 6718, at para. 60, “[i]t has always been lawful to ask a criminal suspect for his identification.” As well, the officers at the vehicle stop remained principally concerned with investigating R and A. There is no evidence that they maintained the detention of R and A while chasing down other evidence away from the immediate scene of the vehicle stop.

[138] Nevertheless, police had to decide whether there were reasonable and probable grounds to arrest A for the shooting or release him; the investigative detention could not go on indefinitely while police searched for evidence to tie A to the shooting. This is not a permissible use of investigative detention. I find that police could and should have done what PC Kinsman did at 7:15 a.m. that morning: that is request the names and contact information of persons who could confirm A’s identity. This would have either prompted A to have provided his true identity (as he did at 7:15 a.m.) or to have refused to provide such information in which case police would have faced the choice of arresting him or letting him go. This constituted a lack of police diligence and a failure to utilize an investigative tool at their disposal.

[139] I find that detentions of both R and A became arbitrary after two hours; that should have been ample time to conduct that portion of the investigation which required the detention of the two accused. By that time, police should have obtained and confirmed A’s identity and either have released him or taken the decision to place A under arrest for providing a false name or for the shooting. This was sufficient time to provide rights to counsel, conduct pat-down and vehicle searches, transfer the detention over to YRP, prove safe the weapons, obtain positive identification, conduct CPIC searches, receive and consider witness information about the shooter, and question the detainees about their involvement in the matter. Certainly, the transporting of the two accused to the detachment, the booking, the searches, the placement into cells and all events of the investigative detention which punctuated that entire time period were unlawful, being beyond any reasonable and brief period during which investigative detention was warranted and could be justified. While two hours might be on the far end of the range of what is permissible for investigative detention, I find that the particular facts and grave circumstances of this case fully justified it. I therefore conclude that the detentions of both R and A crossed the line into arbitrary and unlawful commencing at 4:46am, which is two hours after the three TPS officers approached the Honda and moved to place the two accused into investigative detention. Detention beyond this point constituted an infringement of the s. 9 Charter rights of the two accused.

The Searches: s. 8 Charter Rights

i. The roadside pat down and cursory search of the Honda

[140] I am satisfied that the searches done on the persons of R and A at the roadside stop were reasonable, necessary, and proportional. A shooting had just taken place in close proximity to the vehicle stop. Officer and public safety demanded that a pat down search take place to check for weapons and possible firearms. I find as well that search of the vehicle was necessary and reasonable for officer and public safety. Moving R and A away from the vehicle and directing them to sit on the curb, was also reasonable to prevent an attempt at flight, an attempt to seize police weapons, and to ensure officer safety while the search of the vehicle went on, and while officers stood ready to monitor developments from their position at the very edge of a crime scene. There is no evidence of any mistreatment, abuse, or intimidation of either R or A. The decision to handcuff them was reasonable in light of the knowledge that the pair had been fleeing a violent shooting scene and, in the case of R, because of his rating as violent offender.

ii. The search of the trunk of the Honda

[141] Although I have found that the pat down search and the search of the immediate area in the passenger and rear areas of the vehicle were reasonable for police and officer safety, the same cannot be said for the search of the trunk. First, the search of the trunk was not a search incident to arrest; nor was it in any way an inventory search. Second, the concerns for officer and public safety were minimal to non-existent by the time the trunk search began. R and A were out of the vehicle and they could not readily access the trunk. It would have been impossible for them to hide any weapons in the trunk between the time of being stopped and the officers removing them from the vehicle. Third, there is a high expectation of privacy in a trunk, where persons would typically place items away from detection for personal reasons or for security. Finally, although I find that R provided a form of consent to search the trunk, it was not meaningful and informed consent. There is no suggestion and certainly no evidence that R was aware or made aware of his right to refuse to permit the police to search the trunk; his right to terminate the search once it began; or of the potential consequences of giving his consent. In R. v. Wills, 7 OR (3d) 337, 70 C.C.C. (3d) 529 (Ont. C.A.), the Court of Appeal made it clear that there are features of a consent which must be established before a search can be found to be valid. The Crown has failed in this case to prove that these components were features of R’s consent. I conclude, therefore, that the search of the trunk by PC Ledat was not authorized by law and was not reasonable. The vehicle search constituted an infringement of R’s section 8 Charter rights.

iii. The balance of the searches

I find that the subsequent pat-down search of R conducted by PC Mota, prior to placing R in his police car, was reasonable. The search was brief and not overly intrusive; YRP was taking over the investigative detention of R from TPS; PC Mota was within his rights to safeguard against any hidden weapons; R had a history of firearms possession and was classified as a violent offender. As I have found that the investigative detention of both R and A became unlawful at 4:46 a.m., it follows that any searches or removal of clothing which took place after that time were unreasonable. Those searches were infringements of the respective s. 8 rights of the two accused.

Summary of Findings

Voluntariness

The Crown has failed to satisfy the court beyond a reasonable doubt that the confessions/statements given by A to PC Kinsman at 7:15 a.m., to DC Goddard at 11:30 a.m., and the videotaped statement given by A to Det. Cobor were voluntary. They are not admissible at trial. I am satisfied that all other statements and utterances by both R and A were voluntary.

Alleged Charter breaches

[142] The pat-down searches of both R and A were reasonable, lawful, and justified. The decision to place both detainees in handcuffs was justified for reasons of public and officer safety. Police were investigating the most violent of crimes and needed to place officer and public safety first. In addition, the subsequent search of R by PC Mota beside the police car was reasonable and lawful. The cursory search of the interior of the Honda was entirely reasonable in light of officer and public safety. It was non-destructive and entirely proportionate to the gravity of the situation. I can find no breaches of any s. 8 Charter rights relative to these searches.

[143] The searches of both A and R beyond 4:46 a.m. were unreasonable given that investigative detention beyond that time was unlawful. These searches constituted infringements of the respective s. 8 rights of the two accused.

[144] The search of the trunk of the Honda and the seizure of the imitation weapons were not authorized by law. R did not provide informed consent to that search. This constituted a breach of R’s section 8 Charter rights.

[145] Police had reasonable grounds upon which to place both accused into investigative detention for the shooting, and did so beginning at approximately 2:46 a.m. In light of all the circumstances, continuing to hold the two accused for more than two hours constituted arbitrary detention and a breach of their respective s. 9 Charter rights.

[146] Shortly following their removal from the Honda, both R and A were advised of the reason for their detention and given their rights to counsel and caution by PC Wright. Those rights to counsel were repeated to A in a more formal way by PC Wright, and later, by PC Brown. R was cautioned and advised of his right to counsel by PC Mota within a reasonable period of time after the discovery of the weapons and the receipt of the CPIC information. There was police compliance with these s. 10(a) and 10(b) rights.

[147] A was not promptly afforded his rights to counsel and the reasons for his detention on the obstruct justice and providing a false name investigation. This constituted a violation of his s. 10(a) and s. 10(b) rights.

Section 24(2) analysis

[148] I must now conduct the three lines of inquiry called for in Grant, to determine whether the evidence derived from the Charter infringing conduct should be excluded at trial. I must consider: a) the seriousness of the Charter-infringing conduct; (b) the impact on the Charter-protected interests of the accused; and (c) society’s interest in the adjudication on its merits.

[149] I begin with the search of the trunk of the Honda. While the search was warrantless and not performed incident to arrest, I do find that it was swift, focused, purposeful and entirely non-destructive. This was not some pointless, arbitrary, or random search. It was carried out on a vehicle that was fleeing a shooting scene adjacent to the vehicle stop. PC Ledat’s discovery of the satchel in the back seat left him justifiably concerned that weapons used in the shooting might be located somewhere in the Honda. PC Ledat did not act in bad faith; this was not some pre-planned search in which police had determined to ignore or discard Charter rights. As well, I accept that PC Ledat first sought and obtained the consent of R to the search of the trunk. The fact that the consent obtained was uninformed rendered that consent imperfect. It was not unreasonable for the officer to act upon it. This branch of the inquiry does not favour exclusion.

[150] On the second branch of the inquiry, while there is some expectation of privacy in the contents of a vehicle trunk, that expectation would reasonably be diminished in a reasonable person’s mind if a satchel often used to carry weapons was left in plain view in the back seat of a vehicle. As well, the Honda was not R’s vehicle; it was owned by his father. I find that he could not have held any real expectation of privacy in the contents of the trunk in a vehicle which was not his own. In addition, I have found that R divulged the existence of the trunk and gave his consent (albeit uninformed) to police before it was searched. His state of mind can only be seen as indifferent to what was contained therein. Finally, these imitation weapons were supposedly used in rap music videos. I must assume that the rap videos were meant for public consumption; that being the case the imitation weapons served as props in videos which were intended for viewing by the wider public. There could be no expectation of privacy in such props.

[151] Society certainly has an interest in the adjudication of the matter on its merits. The merits would include all evidence reasonably obtained which may have some value in the determination of the matter. The evidence is certainly reliable. There appears to be no question that the guns were imitation and could not have been used to fire ammunition. The possession of imitation weapons by an accused may or may not be given weight by a jury. I find that this branch of the inquiry is neutral and does not favour either exclusion or admissibility. On balance, therefore, I am prepared to allow the evidence of the imitation guns into evidence at trial.

[152] In respect of the breaches of the s. 9 rights, I find the investigative detention of R and A beyond the two hour window I have allowed to be serious Charter infringing conduct by police. The liberty of the two men was indefinitely suspended. The ongoing detention of R was of little value to the investigation of the shooting generally; that of A could have been curtailed by some additional police diligence. The entire process of transporting the two detainees back to the detachment, booking them, placing them in cells, and subjecting them to interviews, was unnecessarily intrusive and restricting. Both accused were effectively under arrest by that point; indeed, many officers assumed them to be so. The police were obliged to either place the two accused under arrest or, in the absence of reasonable and probable grounds to lay charges, to release them. The sheer length of the unwarranted detention simply compounds the seriousness of the breach; the two accused endured nearly nine hours of being effectively under arrest. This branch of the inquiry favours exclusion of the evidence obtained during the period of arbitrary detention.

[153] The second branch of the inquiry also favours exclusion of the evidence obtained during the period of arbitrary detention. Any kind of detention in a police cell with one’s liberty suspended is unpleasant; unwarranted and arbitrary detention, however lengthy, should never be sanctioned or tolerated. The suspension of one’s liberty without legal or even practical justification constitutes a profound impact on a Charter protected right. The second branch of the inquiry favours exclusion of the evidence.

[154] The third branch of the inquiry also favours exclusion of the evidence. I am not satisfied that the evidence gathered during the period of the arbitrary detention is so crucial to the Crown’s case that its exclusion would frustrate the truth finding role of the jury or serve to stymie the adjudication of the matter on its merits. What is certain is that the court must distance itself from serious Charter infringing conduct which might serve to either undermine the confidence of the public in the fair administration of justice, or the sanctity of fundamental rights. I find that this is such a case. The evidence gathered from R and A during the investigative detention after 4:46 a.m. on April 3, 2017 is inadmissible at trial.

[155] In respect of the breaches of A’s 10(a) and 10(b) rights, the first branch of inquiry favours inclusion of the evidence at trial. A led police a merry chase from the outset by providing the name of Ernest Boateng. Although A had no obligation to cooperate with police during any of the investigations, his failure to provide his real name added a layer of complexity to an already difficult and dangerous situation. Police were careful to provide A with the reasons for his detention and his rights to counsel and caution in respect of the far more serious offence of murder. Those rights were repeated on several occasions. While, technically speaking, no police officer appears to have provided formal rights to counsel in respect of obstruct justice, I find that understandable in light of the far more serious murder investigation in which A was involved and which was raging all around. As well, it appears that the obstruct justice and false name information was generally known to the investigation from the outset. There was a legitimate belief on the part of officers such as Det. Napoleoni that rights to counsel and caution had been given. I find that the failure to afford rights to counsel on these specific charges constituted an oversight and nothing that was denied to A in bad faith.

[156] The second branch of the inquiry similarly favours inclusion of evidence obtained through the Charter breach. First, A was in investigative detention for the shooting; he had been afforded rights to counsel and caution generally, and would have had the opportunity to discuss all aspects of his situation with counsel had he chosen to avail himself of that opportunity. He did not. Second, A is not on trial for obstruct justice or providing a false name. He faces no punishment or jeopardy for providing the name of Ernest Boateng to police or for ultimately divulging his true identity some time later. Finally, the false name of Ernest Boateng was not obtained during or as a result of any Charter infringing state conduct on the part of police. I found the vehicle stop and the investigative detention to be lawful. A was asked to provide his identification; it was not demanded of him. A provided the name of Ernest Boateng of his own accord. The evidence on the voir dire was that A told police he had provided that name to police because they were rude to him. There is no evidence to support such an assertion.

[157] Society’s interest in the adjudication of the matter on its merits also favours admissibility of this evidence. The evidence is reliable; it is highly unlikely that police would have invented that name or misheard it. It bears no resemblance to Rushawn Anderson. The name and spelling was noted by multiple officers and was the subject of information exchange during briefings. PC Brown believed that he was dealing with Ernest Boateng when reading A his rights to counsel more than an hour and a half after his detention began. PC Kinsman independently obtained that same name from A, together with reference names, from him several hours later. It also constitutes post-offence conduct which may have some probative value for the trier of fact. The jury can be properly charged with the proper use that it can make of that evidence. Exclusion of this relevant and reliable evidence would undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective.

[158] Ultimately, my findings on the s. 9 Charter violation and the involuntariness of the two identity confessions preclude the Crown from introducing any evidence obtained from A and R after 4:46am. However, I conclude that the evidence obtained from A during the permissible period of investigative detention is admissible. It follows that any utterances or statements made by A in respect of his identity to police prior to 4:46 am are admissible at trial.

Disposition

[159] For the above reasons, the Defendants’ applications are allowed in part: the evidence obtained from R and A between 4:46 a.m. and 1:40 p.m. on April 3, 2017 is inadmissible at trial. The balance of those applications are dismissed.

[160] The Crown’s application for voluntariness is similarly allowed in part: the statements and utterances by both R and A from the commencement of the traffic stop at 2:46 a.m. until 4:46 a.m. on April 3, 2017 are admissible in evidence. The balance of the Crown application is dismissed. The Crown abandoned its application for the introduction of after the fact conduct.

Justice J. McCarthy

Released: May 6, 2019

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ANDERSON ET AL. REASONS on charter and voluntariness applications MCCARTHY J. Released: May 6, 2019