COURT FILE NO.: 8040/19

DATE: 2020-01-29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Stuart Woods, Counsel for the Crown

• and -

WILLIAM SHUBROOK

Eric D. McCooeye, Counsel for William

Shubrook

HEARD: January 23, 2020

VARPIO J.

REASONS ON CHARTER APPLICATION

FACTS

1On December 25, 2017, Mr. Shubrook was investigated for an assault with a weapon. The weapon in question was a pellet gun. I have not been provided with any of the underlying facts of the investigation for consideration.

2In the early afternoon of that day, Mr. Shubrook was brought to the Sault Ste. Marie Police Service (“SSMPS”) station. He had been arrested for assault with a weapon pursuant to s.267(a) of the Criminal Code of Canada. He was given his rights to counsel and cautioned. He declined to speak with a lawyer.

3He was ultimately released at the station in the late afternoon by Staff Sergeant Chiappetta. S/Sgt. Chiappetta reviewed Mr. Shubrook’s release with him. He indicated to Mr. Shubrook that one of the terms of his release was that he not possess any weapons. Mr. Shubrook advised that he had a pellet gun. Mr. Shubrook agreed to hand over the pellet gun to police so as not to run afoul of his release documents.

4The release documents not only showed the assault with a weapon charge, but also included a discharge firearms charge pursuant to s. 85(1)(a). This offence has a mandatory minimum punishment of one year for a first offence, and three years for subsequent offences.

5Cst. Kates drove Mr. Shubrook home to his apartment where Mr. Shubrook handed the gun over to Cst. Kates.¹

POSITION OF THE PARTIES

6Mr. Shubrook takes the position that his statement to S/Sgt. Chiappetta ought to be excluded because Mr. Shubrook was not advised of the change of jeopardy prior to giving the statement. That is, he was not aware that the discharge firearms offence had been added.

7The Crown takes the position that the change in jeopardy was not sufficient so as to attract the need to re-read rights to counsel and caution. As such, the statement can be adduced into evidence.

ANALYSIS

8Sections 10(a) and 10(b) of the Charter of Rights and Freedoms state:

Arrest or detention

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right;

9Section 24(2) of the Charter reads as follows:

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

10As was agreed by counsel, the narrow issue in this application is whether the additional discharge firearms charge is sufficient to attract a subsequent caution and rights to counsel which was described in R. v. Sawatsky (1997), 1997 511 (ON CA), 9 C.R. (5th) 23 (Ont. C.A.) at paras. 30 and 31:

The link between a detained person's need to understand the extent of her jeopardy; that is the nature and extent of her risk of self-incrimination, and the effective exercise of the right to counsel, provides the key to the determination of when the police will be required to reiterate the right to counsel in the course of an ongoing detention. If the risk of self-incrimination changes, the right to counsel must be restated so that a detainee can decide in the face of the new risk whether to exercise her right to counsel. The risk may change either because the reason for the detention changes or the focus of the police inquiry changes. Referring to the latter situation, McLachlin J. in R. v. Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869 at pp. 306-307 wrote:

... I do, however, affirm that, in order to comply with the first of the three duties set out above [the police duty to inform the detainee of the right to counsel] the police must restate the accused's right to counsel where there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the warning. [Emphasis added.]

In this passage, McLachlin J. observes that the focus of the police investigation may change either because the offence changes to a significantly more serious one, even though the circumstances under investigation remain the same (e.g. R. v. Black, supra), or because the investigation turns to a different and unrelated offence (e.g. R. v. Chartrand, supra). Either change triggers the obligation to restate the detainee's s. 10(b) rights.

11The Crown pointed to the Albert Queen’s Bench case of R. v. Apengo 2011 ABQB 171 as showing that a change from a weapons offence to a firearms offence is not sufficiently serious so as to attract concern as per R. v. Evans. At paragraph 2 and 3 of the decision, Lee J. described the evidence as follows:

On May 13, 2008, members of the Edmonton Police Service (EPS) responded to a civilian complaint at [...], Edmonton, Alberta with the information that three males at the location were threatening the complainant with baseball bats and had arrived in a two-door convertible BMW which was either silver or purple. On arrival at the location and pulling into the parking lot of the multi-family complex, which contained the residence associated to the complaint, Constables Leachman and Paasuke of the EPS observed a BMW where three males got into the car and were leaving the area driving towards the exit that the police were entering from. The police activated their emergency equipment, exited their vehicle and conducted a high-risk takedown with their firearms drawn. In the course of the operation, the police "gave verbal instructions to the occupants of the vehicle" informing them that they were being stopped because "they were considered armed and dangerous" at the time.

Constable Leachman testified that the occupants were extracted from the vehicle "one at a time", placed in handcuffs and sat on the curb off to the driver's side of their vehicle. The police then approached the BMW with its convertible roof retracted, doors open and "did a sweep of the vehicle looking in the vehicle" while standing outside. In the process, Constable Leachman observed the butt end of a handgun under the front passenger seat, on the floorboards. The Accused had been sitting in the front passenger seat. Shortly after this observation, the three male occupants of the vehicle were arrested, chartered and cautioned. The Accused was later transported to the West Division Police Station, where he was given the opportunity to contact counsel and subsequently gave inculpatory statement in a taped interview (Exhibit No. VD-3) that the handgun was his and that it was purchased with the intention of selling it for profit.

12At paras 50 and 52, the trial judge admitted the statement into evidence by indicating that there was no Charter breach:

The evidence before me indicates that the Accused was sitting on the curb off to the driver's side of the vehicle and as such was near the car when the officer saw the firearm during his visual inspection of the car. Further, when Constable Paasuke arrested the Accused she informed him that he was being arrested for weapons offence. This information, in my opinion, is broad enough to include firearm charges. This conclusion becomes logical in the particular circumstance of this case where one of the occupants of the vehicle, Mr. Levesque, gave evidence relating to the presence of firearm in the vehicle.

I have considered the argument of the Defence that the Accused's jeopardy and liability changed substantially from his initial arrest and detention for a "weapon" offence when he was advised of the firearm charges, suggestive of further advice consequent to a re-trigger of his section 10(b) right. However, I note that the Supreme Court of Canada stated in Sinclair [2010 SCC 35] that: -

The change of circumstances, the cases suggest, must be objectively observable in order to trigger additional implementational duties for the police. It is not enough for the accused to assert, after the fact, that he was confused or needed help, absent objective indicators that renewed legal consultation was required to permit him to make a meaningful choice ... (para 55).

On the facts of this case and the evidence before me, I am not satisfied that specifying the nature of the "weapon" to be "firearm" is in the nature of the changed circumstances which is objectively observable that would require additional implementational duties for the police. Therefore, I find that there were no changed circumstances requiring renewed consultation with a lawyer.

13Having reviewed Apengo, I understand the decision but note that it does not sit squarely with the case before me. In Apengo, the accused persons were advised that they were being charged with weapons offences as guns were observed in the impugned vehicles. An objective observer could easily assume that serious weapons and/or firearms offences were being contemplated such that charging the accused persons with offences having mandatory minimums would not provide “objective indicators that renewed legal consultation was required to permit him to make a meaningful choice”. Objectively, the observer would undoubtedly realize ab initio that the accused persons in Apengo were facing very serious jeopardy.

14In the case before me, however, the accused was led to believe that he was being charged with assault with a weapon, with a pellet gun – a charge that has no minimum punishment and a charge which routinely attracts discharges as a penal consequence. Charging Mr. Shubrook with an offence under s.85(1)(a) substantially changed his jeopardy in so far as the penal consequences of his alleged conduct changed dramatically. As per Evans, this additional change was “a fundamental and discrete change in the purpose of the investigation, one involving… a significantly more serious offence than that contemplated at the time of the warning.” Any other interpretation of the difference between the s. 85(1)(a) and the s.267(a) charges completely ignores the mandatory minimum imposed by Parliament. The firearms charge is “significantly more serious” than the assault with a weapon.

15Without belaboring the point, I also find that a pellet gun is not considered by the average person to be a “firearm” like a handgun or rifle. Children all over this country use pellet guns. The same cannot be said for firearms. Unlike Apenjo, therefore, it cannot be said that Mr. Shubrook knew, or ought to have knew, that firearm offences could be in the offing.

16Accordingly, the addition of the s.85(1)(a) charge created a significant change in jeopardy such that a re-reading of the rights to counsel and caution was necessary in the circumstances. Accordingly, Mr. Shubrook’s statement to S/Sgt. Chiappetta was procured as a result of a s. 10(a) and 10(b) Charter violation.

The Remedy

17In R. v. Grant 2009 SCC 32, the Supreme Court of Canada described a three-prong test to determine whether evidence ought to be excluded under section 24(2). The test involves the examination of:

a. The seriousness of the breach;

b. The seriousness of the impact of the breach; and

c. Society’s interest in adjudicating the matter on its merits.

18At para. 91 of Grant, the Supreme Court stated:

There is no absolute rule of exclusion of Charter-infringing statements under s. 24(2), as there is for involuntary confessions at common law. However, as a matter of practice, courts have tended to exclude statements obtained in breach of the Charter, on the ground that admission on balance would bring the administration of justice into disrepute.

The Seriousness of the Breach

19In this case, the breach is relatively serious, although far from extreme. It is clear that there was no police malfeasance in the actions of the SSMPS. No officer engaged in untoward or malicious conduct. Nonetheless, it is clear that someone at the station decided to lay a far more serious charge prior to Mr. Shubrook speaking with S/Sgt. Chiappetta. The issue of who laid the charge was never resolved. While one can easily imagine how mistakes can happen on Christmas Day regarding issues such as paperwork, such mistakes can nonetheless be meaningful when a paperwork error results in a serious change of jeopardy. This is thus a meaningful breach, irrespective of the likely innocent explanation therefor.

Impact of the Breach

20The impact of a breach upon statements was described in Grant at para. 95:

The second inquiry considers the extent to which the breach actually undermined the interests protected by the right infringed. Again, the potential to harm the repute of the justice system varies with the seriousness of the impingement on the individual's protected interests. As noted, the right violated by unlawfully obtained statements is often the right to counsel under s. 10(b). The failure to advise of the right to counsel undermines the detainee's right to make a meaningful and informed choice whether to speak, the related right to silence, and, most fundamentally, the protection against testimonial self-incrimination. These rights protect the individual's interest in liberty and autonomy. Violation of these fundamental rights tends to militate in favour of excluding the statement.

21While Mr. Shubrook did not testify in the application, the impact upon his understanding would have been obvious in that police action “undermined the detainee’s right to make a meaningful and informed choice”. The impact of failing to advise Mr. Shubrook, therefore, of this change in circumstances is quite high.

Society’s Interest

22I have been given little information regarding the nature of the offences and the importance of the evidence in this matter. In fact, I was not provided with a synopsis or other information so as to gauge the importance of this evidence to the prosecution. Accordingly, this is a neutral factor in that I do not have any information to perform an analysis.

The Weighing

23In this case, the first two factors weigh in favour or exclusion while the third factor is neutral. There is no need to engage an extended analysis as a result. The statement is excluded from evidence under s.24(2).

CONCLUSION

24The application is successful, and the evidence is excluded from trial.

Varpio J.

Footnotes

1. 1It should be noted that the Crown agreed that the gun was seized by police in violation of Mr. Shubrook’s s.8 Charter rights and that admission of the gun into evidence would not survive s.24(2) scrutiny. The gun has therefore been excluded from evidence.