COURT FILE NO.: CR-18-00015-00
DATE: 200921
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
BRANDON PHILLIP GEORGE BAPTISTE
Paul Layefsky and Lynn D. Ross, for the Crown
Anthony G. Bryant and David R. Newton, for the Defendant
HEARD: 18, 19, 20, 21, 24, 25 and 26, 2020 August, at Belleville
THESE PROCEEDINGS ARE SUBJECT TO AN ORDER MADE PURSUANT TO SECTION 517(1) OF THE CRIMINAL CODE THAT THE EVIDENCE TAKEN, THE INFORMATION GIVEN OR THE REPRESENTATIONS MADE AND THE REASONS, IF ANY, GIVEN OR TO BE GIVEN, SHALL NOT BE PUBLISHED IN ANY DOCUMENT, OR BROADCAST OR TRANSMITTED IN ANY WAY BEFORE SUCH TIME AS THE TRIAL IS ENDED, OR OTHER ORDER OF THIS COURT.
MEW J.
REASONS FOR DECISION
(Applications concerning the admissibility or exclusion of statements of the defendant)
[1] Brandon Baptiste faces three charges:
a) The second degree murder of Kenneth Russell Ferrill on 2 April 2017;
b) Pointing a firearm (a rifle) at Jennifer Ferrill; and
c) Possessing firearms (two rifles and a shotgun) without being the holder of a licence to do so.
[2] The Crown has brought an application for a declaration that various utterances and statements made by Mr. Baptiste to various police officers on 2 and 3 April 2017 were made voluntarily and should be admitted into evidence.
[3] The defence opposes the Crown’s voluntariness application and, further, brings an application seeking the exclusion of Mr. Baptiste’s statements on the grounds that his rights were infringed or denied pursuant to s. 7, 9, 10(b) and 11(d) of the Canadian Charter of Rights and Freedoms.
[4] The essence of the defendant’s opposition to the voluntariness application is that, having initially been told by one of the officers involved in Mr. Baptiste’s arrest that “we’ll get to the bottom of this”, a tone was set which was continued throughout Mr. Baptiste’s subsequent interactions with the police, such that he would have understood that the approach of the police was to get things cleared up, conveying a subtle but unmistakable suggestion that he would benefit if he talked to the officers. This approach was, the defence argues, compounded by the failure of the two officers involved in the initial arrest to accurately or contemporaneously record all of their interactions with Mr. Baptiste during the half hour or so that transpired between his arrest and his delivery to a police station.
[5] The Charter applications challenging the admissibility of the statements given by Mr. Baptiste arise from two further elements of what occurred on 2 and 3 April 2017, namely:
a) The inability of Mr. Baptiste to exercise his constitutional right to retain and instruct counsel without delay, because the lawyer he consulted, unbeknown to Mr. Baptiste or the lawyer, had a conflict of interest that would have precluded him or his firm from representing Mr. Baptiste; and
b) The longest and most substantive interview of Mr. Baptiste by a police officer took place at the police station after a judge had signed a warrant remanding Mr. Baptiste to appear in court later that day.
[6] On 31 August 2020, I advised the parties that I had concluded that the statements and utterances made by Mr. Baptiste were voluntary and admissible. I gave a brief indication of the basis upon which I had come to those conclusions and advised the parties that I would provide reasons for my decision in due course. These are my reasons.
Facts
[7] The following facts are among those that have been admitted for the purposes of Mr. Baptist’s trial.
Kenneth Ferrill was killed on 2 April 2017 by a single gunshot wound to the torso.
The gun was fired by Brandon Baptiste inside his residence at Unit 1, 28 Deserontyon Drive, Tyendinaga Mohawk Territory, out through the window on the front and only door leading into the unit.
The gun used by Mr. Baptiste was a JR Carbine rifle. The gun was given to the police by Mr. Baptiste’s parents later on the morning of 2 April 2017 at their residence, which was located approximately 10 kilometres away from the Deserontyon Drive residence.
[8] The shooting occurred at approximately 03:10 (the first 9-1-1 call following the incident was at 03:13).
[9] Mr. Baptiste was arrested without incident by First Nations Constable Jason Brant of the Tyendinaga Police Service (“TPS”) and Constable Chris Brinklow of the Ontario Provincial Police (“OPP”) who was, at the time, on secondment to the TPS (and has subsequently rejoined the TPS), at the residence of Mr. Baptiste’s parents at 364 York Road, Deseronto, at 09:28.
[10] Constables Brinklow and Brant had gone to the York Road residence to speak to Mr. Baptiste’s parents. It was hoped that the parents could help the police establish contact with Mr. Baptiste, whose whereabouts were, at the time, unknown to the police. There was a concern that he might still be inside the Deserontyon Drive residence.
[11] PC Brinklow described how, on arrival, Mr. Baptiste’s parents, Mario Sr. and Kathy, had exited their residence. The officers had told them that they were looking for Brandon. Soon afterwards, Brandon Baptiste came out. The officers arrested him.
[12] The accounts given by the two officers of what happened during the half-hour that followed do not exactly align. PC Brinklow, for example, recalled that Mr. Baptiste was handcuffed immediately. FNC Brant recalls Mr. Baptiste asking that he not be cuffed in front of his parents, with the result that he was handcuffed out of their sight before being placed in the police cruiser.
[13] Neither the arrest or the 19 minute ride from the York Road residence to the Napanee OPP detachment were recorded on any form of audio or video recorder. Details which emerged the course of the officers’ testimony were not recorded in their notes. In particular, neither officer made a record of a telephone conversation that took place between PC Brinklow and OPP Staff Sergeant Serge Acay, which occurred during the course of the journey, following which a secondary caution was administered to Mr. Baptiste by PC Brinklow.
[14] What could be said with confidence is that the arrest and subsequent transportation of Mr. Baptiste to the police station was a cooperative process. FNC Brant acknowledged that at the time of Mr. Baptiste’s arrest they had all shaken hands. FNC Brant knew the family, as did PC Brinklow, although PC Brinklow had not formally met Brandon Baptiste before. Furthermore, Brandon Baptiste’s then girlfriend, Kaitlin Anderson, was the daughter of PC Brinklow’s father’s former partner.
[15] FNC Brant acknowledged that, at the time of Mr. Baptiste’s arrest, he said to him “We will get to the bottom of this”. He explained that he did this to show good faith and that there would be an investigation and to thank Mr. Baptiste and his parents for a peaceful conclusion to the apprehension of Mr. Baptiste.
[16] Both officers described Mr. Baptiste as “very compliant”. Both deny threatening Mr. Baptiste in any way or making him any promises. PC Brinklow recalls Mr. Baptiste saying, before getting into the police cruiser, that he was sorry that they had had to “meet this way”.
[17] PC Brinklow had told Mr. Baptiste he was under arrest for murder and had read him his right to counsel. Mr. Baptiste had provided the names of three lawyers and was told by PC Brinklow that they would “take care of that” once they got to Napanee. PC Brinklow then cautioned Mr. Baptiste.
[18] According to PC Brinklow, there was some general chit-chat during the course of the journey about the spear fishing season that was just beginning. PC Brinklow had initially not recalled at all that a telephone conversation had taken place with Staff Sgt. Acay. It was only after having had conversations with defence counsel and FNC Brant the day before he testified that PC Brinklow remembered that there had been such a conversation. He says that Staff Sgt. Acay wanted to ensure that Mr. Baptiste had been read his rights and cautioned. Staff Sgt. Acay directed PC Brinklow not to question Mr. Baptiste further (PC Brinklow says that he had, in fact, not questioned Mr. Baptiste at all). As already indicated, after that telephone conversation with Staff Sgt. Acay, PC Brinklow read Mr. Baptiste a secondary caution. Mr. Baptiste responded that he understood and that “he just wanted to get this cleared up”. PC Brinklow could not recall whether the delivery of the secondary caution to Mr. Baptiste was generated by his conversation with Staff Sgt. Acay. He acknowledged that he was not aware of any person in authority, other than himself and PC Brant, who might have come into contact with Mr. Baptiste following his arrest.
[19] While there was no express reference to Kaitlin Anderson, PC Brinklow acknowledged that he assumed that Mr. Baptiste’s expressed regret about the circumstances in which they had met was a reference to the fact that he (Mr. Baptiste) was in a relationship with PC Brinklow’s step-sister.
[20] FNC Brant had no memory of a discussion about fishing en route to the Napanee Detachment. However, he confirmed that, following a telephone conversation between PC Brinklow and Staff Sgt. Acay, a secondary caution was given. He explained that sometimes this was done out of an abundance of caution.
[21] PC Brinklow acknowledged that he possessed a mobile telephone with voice recording capabilities. When asked why he had not recorded the journey from the place of arrest to the police station, PC Brinklow said it had not occurred to him to do so.
[22] The defence argues that these initial interactions set a tone. The “we will get to the bottom of this” comment. The chat about fishing. And the hope, apparently expressed by Mr. Baptiste, that he would be out in time for the fishing season.
[23] According to the defence what occurred during that first half hour following Mr. Baptiste’s arrest, planted a seed that germinated over the next 26 hours or so.
[24] At 10:07, shortly after his arrival at the Napanee Detachment of the OPP, Mr. Baptiste spoke with a lawyer, Jason Easton. This was, in fact, Mr. Baptiste’s second consultation with Mr. Easton, as he had also spoken to him earlier, at 07:10, prior to his arrest.
[25] Between 10:17 and 11:13, Mr. Baptiste was again cautioned and given a secondary caution by OPP Detective Constable John Kyle prior to a search incident to arrest being undertaken for gunshot residue. During this interaction, Mr. Baptiste made some utterances concerning, among other things, a bite mark injury to his hand. The interaction was audio recorded.
[26] There were three further interactions during the evening of 2 April 2017.
[27] At 18:25, DC Kyle told Mr. Baptiste that he was going to be held overnight at the detachment pending transportation the next morning to the Belleville Courthouse for a first court appearance.
[28] At 22:48, Detective Constable Gaston Thibodeau commenced an interview with Mr. Baptiste. He began by formally arresting Mr. Baptiste on three charges (first degree murder, pointing a firearm and unlawful possession of a firearms).
[29] As the formal reading of the firearm charges represented a change of Mr. Baptiste’s jeopardy, he was once again read his rights to counsel and cautioned. Mr. Baptiste stated that he wanted to speak again to Jason Easton, the same lawyer that he had spoken to earlier.
[30] OPP Detective Constable Kevin Garragh then attempted to contact Mr. Easton. A message was left. However, no call back was received from Mr. Easton that evening and, accordingly, DC Thibodeau did not continue with the interview of Mr. Baptiste.
[31] Mr. Baptiste was detained overnight at the OPP detachment in Napanee.
[32] Mr. Easton and Mr. Baptiste were able to speak to each other by telephone between 06:19 and 06:35 the next morning (3 April 2017).
[33] It was going to be necessary to take Mr. Baptiste before a justice within a period of 24 hours following his arrest (pursuant to s. 503(1) of the Criminal Code). Accordingly, at approximately 20:00 on 2 April, DC Garragh had instituted arrangements for a Provincial Judge to attend at the Napanee detachment on the morning of 3 April for the purposes of remanding Mr. Baptiste to be brought before a Justice of the Peace in Belleville at 13:00 on 3 April.
[34] At 07:29 on 3 April, DC Kyle swore an information charging Mr. Baptiste with first degree murder and other offences before Justice Geoffrey Griffin of the Ontario Court of Justice and, shortly after, Justice Griffin spoke to Mr. Baptiste in the presence of DC Kyle and remanded him into custody.
[35] The Warrant of Remand used a standard form (Form 19) and required the police officers to convey Mr. Baptiste “to the prison, jail, regional detention centre or hospital” and further ordered “the keeper of said place of custody, to receive [Mr. Baptiste] into your custody into the place of custody and keep him safely until...his remand expires and to have him before the presiding Judge or any…or any other Justices at 15 Bridge St. West, Belleville On, Canada at the hour of 1:00 o’clock in the afternoon” of 3 April 2017.
[36] Justice Griffin told Mr. Baptiste that he was being remanded into custody until bail court, that he would be there at 13:00, but that he should understand that the Justice of the Peace would not be able to grant bail then because of the nature of the charge.
[37] At 07:55, DC Kyle advised DC Thibodeau that Mr. Baptiste had been remanded in custody by Justice Griffin, and that DC Thibodeau could continue his interview with Mr. Baptiste.
[38] DC Thibodeau conducted a videotaped interview of Mr. Baptiste from 08:39 until 11:43.
[39] At the conclusion of the interview, Mr. Baptiste was finger printed. He was then transported to Belleville where he was placed in the cells at the Belleville Courthouse.
[40] Although Mr. Baptiste was in the Belleville Courthouse, he was not brought up to a courtroom to appear in front of the Justice of the Peace. After meeting with a lawyer, Edward Kafka (a member of the same firm as Mr. Easton), Mr. Baptiste was taken into a video remand room and from there appeared before a Justice of the Peace by closed circuit television. The Justice of the Peace remanded him in custody, following which, Mr. Baptiste was taken to the Quinte Detention Centre.
Voluntariness
[41] An appropriate starting point for any discussion on the voluntariness of statements given by an accused person to police officers or other persons in authority is to reiterate the principle that, before a statement made by an accused to a person in authority may be admitted into evidence, it must be proved beyond a reasonable doubt that it was given voluntarily. The onus of proving this is on the Crown.
[42] In discharging its onus of establishing the voluntariness of statements made by an accused person, the Crown has the responsibility of establishing a record of the interaction between the suspect and the police. As Charron J.A. explained, in R. v. Moore-McFarlane, (2001), 56 O.R. (3d) 737, 2001 CanLII 6363, at para 65:
That onus may be readily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect.
[43] There is, however, no absolute rule requiring the recording of statements. Rather, the inquiry into voluntariness is contextual in nature and all relevant circumstances must be considered (Moore-McFarlane, at para 64).
[44] Mr. Baptiste was arrested without incident. He and his parents shook hands with the arresting officers. The reported tone and content of his interaction with those officers was respectful and cordial. That tone continued throughout his time at the Napanee Detachment of the Ontario Provincial Police.
[45] The defence argues that, from the outset, officers Brant and Brinklow instilled in the accused’s mind an expectation that if he could help the officers “get to the bottom of this” he would be able to go home. Related to this, the defence is critical of the failure of officers Brant and Brinklow to record their interactions with Mr. Baptiste or to make detailed, contemporaneous notes. They underscore this concern by pointing to the lack of consistency between the recollection of each of the officers of the arrest and subsequent transportation of Mr. Baptiste to the Napanee detachment.
[46] The Crown does not, in fact, rely on anything that may have been said by Mr. Baptiste to officers Brant and Brinklow. Nevertheless, the defence asserts that the lack of a sufficient record of those interactions creates an aura of doubt about whether an inducement was, effectively, offered to Mr. Baptiste, and that this would have had a derivative tainting effect on all of the interactions between Mr. Baptiste and other police officers that followed: “If the first statements were involuntary, then so too are the rest of them”.
[47] With the benefit of hindsight, PC Brinklow could, perhaps, as the defence suggested he should have, made a recording of the transportation of Mr. Baptiste from the place of arrest to the police station on his mobile phone. However, when viewed in light of all the circumstances, the failure of the officers to make a recording is understandable. Both officers had grown up in, and were familiar with, the Tyendinaga Mohawk Territory and its people. That morning, they had gone around to speak to Mr. Baptiste’s parents with the hope of finding a way to make contact with Mr. Baptiste. One of the theories that the police were operating on at the time was that Mr. Baptiste might still have been in his residence at 28 Deserontyon Drive. They were not expecting to find Mr. Baptiste at his parents’ residence. In short, they were not expecting to be arresting Mr. Baptiste.
[48] I accept the evidence of PC Brinklow that, during the car journey to Napanee, he gave a secondary caution to Mr. Baptiste out of an abundance of caution. He did so after speaking to Staff Sgt. Acay, a senior officer. The fact that a secondary caution was given to Mr. Baptiste does not necessarily mean that one was required. Indeed, there is no evidence to suggest that it was required.
[49] Rather than being criticized for effecting a low-key, respectful and peaceful arrest of the principal suspect in a homicide investigation, the two officers concerned should be commended. Within less than 25 minutes, they had delivered Mr. Baptiste to the Napanee detachment. There is no evidence of any attempt by the officers to discuss with Mr. Baptiste any of the events leading up to his arrest. To characterize any casual conversation about “getting to the bottom of this” or going spear fishing, as possibly amounting to an inducement or otherwise compromising the voluntariness of Mr. Baptiste’s utterances is, given the circumstances, an unwarranted contortion of what occurred.
[50] I therefore reject the argument that there was anything that happened up to the point of Mr. Baptiste’s delivery to the OPP detachment which could have a derivative tainting effect on the statements he subsequently made.
[51] In addition to what occurred during the first half hour or so immediately following Mr. Baptiste’s arrest, a number of other exchanges between Mr. Baptiste and officers are submitted as compromising the voluntariness of his statements.
[52] Commencing at 10:17 on 2 April 2017, Mr. Baptiste was interviewed by DC John Kyle. DC Kyle told Mr. Baptiste that he was under arrest for murder and that, while a lot of things were unknown, “at this point we are treating this as a first-degree murder charge that you are facing”. Knowing that Mr. Baptiste had already spoken with a lawyer and that he was not obliged to say anything unless he wished to do so, DC Kyle asked whether Mr. Baptiste wished “to say anything in answer to the charge”. Mr. Baptiste responded “I just prefer, I just kind of more comfortable have my lawyer present”. DC Kyle then proceeded to provide a secondary caution and explained that a gunshot residue examination incident to arrest would be performed.
[53] The defence complains that nothing was done by DC Kyle or any other officer to disabuse Mr. Baptiste of any notion he may have had that he was entitled to have a lawyer present.
[54] Then, in what turned out to be a short interview which DC Thibodeau commenced at 22:47, Mr. Baptiste was told that, in addition to being charged with first degree murder, he was being charged with pointing a firearm at Jennifer Ferrill as well as unlawful possession of a firearm. The charges were formally read and he was given a secondary caution. Mr. Baptiste was complimentary about how he had been treated. He said it was the first time he had ever been in trouble and that “I just want to get this shit out of the way”. He was asked whether he wanted to exercise his right to counsel given the new charges. He told DC Thibodeau that he was not there to “throw myself in jail for something” and that “I just want to get that straightened out right”. He then advised that he wished to speak to Mr. Easton again, and the interview was terminated.
[55] The following morning, having spoken again with Mr. Easton, DC Thibodeau commenced interviewing Mr. Baptiste at 08:39. Towards the beginning of the interview, DC Thibodeau asks “How does all this start”? The exchange continues:
Baptiste: I would feel more comfortable talking to my lawyer about it.
D/C Thibodeau: Okay
Baptiste: But like yeah like but these like but someone was definitely in my house before I was.
D/C Thibodeau: Okay
Baptiste: In my house…
There then follows an extensive discussion, with DC Thibodeau and Mr. Baptiste taking turns to talk.
[56] Considerably further on in the discussion DC Thibodeau asks Mr. Baptiste how he got the weapon that he said he had used to shoot Mr. Ferrill to his family. Mr. Baptiste responds: “well I’d kind of rather talk to my lawyer like you know what I mean, I’d rather that my lawyer be here about everything”. Mr. Baptiste continues that he is not trying to avoid telling the officer what happened. DC Thibodeau responds that at the end of the day Mr. Baptiste’s lawyer is not the one who they are talking about in the newspaper. Mr. Baptiste then expressed concern about “you guys” [the police] twisting his words around. DC Thibodeau assured him that the discussion was being recorded and that that will not happen. The interview continues.
[57] The defence, while acknowledging that the exchanges between Mr. Baptiste and the officers represent the antithesis of an oppressive situation, nevertheless argues that Mr. Baptiste’s free will was overborne by far more subtle methods. DC Thibodeau is said to have conducted a “subtly compulsive” interview: see R. v. Timmons, 2002 NSSC 113 at para 12. The defence says that Mr. Baptiste’s understanding, as exemplified by some of his utterances, was that he wanted to help the police officers to do their job so that he [Mr. Baptiste] could get home.
[58] The Crown submits that Mr. Baptiste fully understood that anything he said could be used in court. He knew that the interviews were being recorded. During the three-hour interview with DC Thibodeau on 3 April, Mr. Baptiste did not request or attempt to leave the room. While, as noted above, on several occasions he commented about wishing his lawyer to be present, he then immediately and spontaneously continued to speak freely about the circumstances about the shooting himself and, ultimately, chose to give the back story to the shooting in the second half of the interview.
[59] Furthermore, even if it could be said that the initial exchanges with FNC Brant and PC Brinklow had led Mr. Baptiste to believe that if he gave a statement, he would be able to go home, the Crown submits that he would no longer have been labouring under such a misapprehension after having received a further caution and secondary caution from DC Kyle shortly after Mr. Baptiste arrived at the Napanee detachment.
[60] In short, the Crown submits that, to the extent that Mr. Baptiste may have felt it was in his best interest to tell the police what had taken place, there is no indication from the evidence that such belief arose from any quid pro quo or inducement that overbore the will of Mr. Baptiste not to speak to the police.
[61] As Iacobucci J., observed in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para 57:
Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne.
[62] It would be a mistake, in my view, to confuse the low-key, free-flowing, conversational and empathetic nature of the exchange between Mr. Baptiste and DC Thibodeau in this case with the phenomenon of “subtly compulsive” interviewing techniques described in the Timmons case. There, the suspect continuously asserted his right to remain silent, but the interviewers either ignored him or attempted to persuade him that the advice he had received from his lawyer was not good advice. The suspect asserted his right to remain silent at least ten times in the first one hour and fifteen minutes of his interview. By the time he made his first admission, he had asserted his right to be silent approximately eighteen times in 3.5 hours. He was also visibly fatigued at certain points. By the time of his first admission, the trial judge found that the suspect’s “determination had turned to resignation”. He had just given up. Edwards J. found that, despite the apparent courtesy of the officers, the cumulative effect of their conduct rendered the suspect’s answers to their questions involuntary (see Timmons at para 8).
[63] The manner in which DC Thibodeau and the other officers involved with Mr. Baptiste conducted themselves is a far cry from the egregious circumstances described in cases like Timmons. The overarching impression of those exchanges is that Mr. Baptiste was treated with respect and courtesy and that he wanted to explain what had happened. And while it no doubt encouraged Mr. Baptiste to be forthcoming, DC Thibodeau’s empathy seemed genuine and measured. In fact, at one point he gently rebuked Mr. Baptiste for not appreciating the suffering that Mr. Ferrill’s family would be experiencing.
[64] I am entirely satisfied that the Crown has met its burden of proving that Mr. Baptiste’s statement was voluntary and admissible as evidence at his trial, subject to what I will say later in these reasons about Mr. Baptiste’s continued detention at the police station after Justice Griffin had signed a Warrant of Remand shortly before 07:48 on 3 April 2017.
Right to Counsel
[65] Mr. Baptiste had three telephone consultations with Jason Easton. The first of these was prior to his arrest. The second and third consultations were the result of Mr. Baptiste exercising his constitutional right to retain and instruct counsel without delay and to be informed of that right.
[66] The first two conversations with Mr. Easton occurred on 2 April. It was a Sunday. The third conversation occurred the next morning.
[67] Unbeknown to Mr. Easton, his colleague Edward Kafka had represented Mr. Ferrill on a charge of assault with a weapon in 1997 and 1998. Although Mr. Easton had memorialized his first two conversations with Mr. Baptiste in an email which he sent to Mr. Kafka and Pieter Kort, the other members of the law firm that he worked at, at 12:52 on 2 April 2017, Mr. Easton remained unaware of Mr. Kafka’s previous representation of Mr. Ferrill when he spoke with Mr. Baptiste between approximately 06:20 and 06:35 on 3 April.
[68] By the time that Mr. Baptiste appeared at the Ontario Court of Justice in Belleville on 3 April 2017, the conflict had, however, become apparent and, accordingly, Mr. Kafka, who attended at court to assist Mr. Baptiste, declared that the firm had a conflict of interest and could not represent Mr. Baptiste on the charges before the court.
[69] There was no ethical screen in place at the Kafka Kort firm to insulate Mr. Easton from the effects of Mr. Kafka’s prior representation of Mr. Ferrill.
[70] There is no assertion by Mr. Baptiste that Mr. Easton provided incompetent advice or any advice that could be characterized as constituting the ineffective assistance of counsel. Nevertheless, Mr. Baptiste argues that because Mr. Easton was not able to represent him, he was deprived of the opportunity to exercise his right to counsel. Referring to the decision of the Supreme Court of Canada in R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at paras 24-29, the defence argues that the absence of an ability on the part of Mr. Baptiste to obtain the effective assistance of counsel could compromise his ultimate right to a fair trial.
[71] It is not necessary for an accused person to demonstrate an actual prejudice arising from the existence of a conflict of interest or that the conflict adversely affected the lawyer’s performance on behalf of the accused: R. v. Neil, 2002 SCC 70, [2002] 3 S.C.R. 631, at para 39.
[72] In R. v. Braithwaite, [2002] O.J. No. 1955 (ONSC) at para 15, the Court observed that where evidence shows that legal advice given is so bereft of inquiry and analysis that it could be characterized as being equivalent to not having been given advice at all, a detained person’s rights under s. 10(b) of the Charter could be breached.
[73] The defendant submits that because the statements that he gave, in particular the interview with DC Thibodeau, occurred without the benefit of advice from a lawyer who would be able to represent him, the statements should be excluded.
[74] The Crown counters that the logical conclusion of the defence’s argument is that an individual’s right to counsel could never effectively be exercised unless the lawyer was in a position to say with complete certainty that he or she would not have a conflict of interest. This would be an impossible standard, particularly where, as here, all of the calls took place outside of business hours, and before Mr. Easton had even been in a meaningful position to run a conflict check.
[75] In the present case, the potential conflict of interest arose from Mr. Kafka’s prior representation of Kenneth Ferrill, the man Mr. Baptiste is accused of having murdered. Mr. Easton was not aware of that prior representation when he spoke to Mr. Baptiste. Nor, of course, was Mr. Baptiste. There is no suggestion that Mr. Easton did anything other than properly discharge his professional obligations, as a lawyer and an officer of the court, on each of the occasions that he spoke to Mr. Baptiste. Bearing in mind that the first calls occurred at 07:10 and 10:07 on a Sunday morning, and the third call at 06:30 on a Monday, there can be no criticism of Mr. Easton’s ignorance of his colleague’s prior representation of Mr. Ferrill. Nor is there any evidence to suggest that the advice which Mr. Easton provided was compromised. Although courts should not speculate on what advice might have been given (see R. v. Czorny, 1996 CanLII 8165 (ON SC), [1996] O.J. No. 3410, at para 11), in the absence of any other evidence suggestive of a problem with the lawyer’s conduct or advice, the subsequent discovery of a conflict of interest, which neither the lawyer nor the client knew about at the time that legal advice was given, will not render the accused’s exercise of his right to counsel nugatory.
[76] Furthermore, I would observe that to the extent that there can be any complaint about Mr. Baptiste not having been able to exercise his right to counsel, the state played no part in the circumstances giving rise to such complaint.
[77] In fact, Mr. Baptiste was able to, and did, exercise his constitutional right to counsel. The fact that he was not ultimately able to retain Mr. Easton does not change that. I would dismiss this ground of the defence application.
Arbitrary Detention
[78] The effect of the Warrant of Remand, which was signed at or shortly after 07:48 on 3 April 2017, by Justice Griffin, was to transfer Mr. Baptiste from the custody of the police to the custody of the court.
[79] S. 516(1) of the Criminal Code authorizes a justice before or at any time during the course of judicial interim release proceedings under s. 515 of the Code, to remand an accused “to custody in a prison by warrant in Form 19”. “Prison” is defined by in s. 2 of the Criminal Code as including a “penitentiary, common jail, public or reformatory prison, lock-up, guard room or other place in which persons who are charged with or convicted of offences are usually kept in custody”.
[80] In R. v. Precourt (1976), 1976 CanLII 692 (ON CA), 18 O.R. (2d) 714 (C.A.), the Court held that notwithstanding the broad definition of a “prison” it is clear that the Code contemplates custody of a different character following a remand under what is now s. 516 than the investigative police custody that preceded the Warrant of Remand. As Martin J.A. explained, at p. 725:
When the accused has been taken before a judicial officer and remanded on an information, the investigative process incidental to arrest has terminated, a decision to invoke the machinery of criminal law to try the accused has been made, and he is thereafter under the jurisdiction of the Court…
It is implicit…in the provisions of the Code and the statutory form of warrant remanding a prisoner that ordinarily where a prisoner is remanded in custody he is to be held in a custodial facility separate from mere holding cells connected with the police function where such a prison is available.
[81] The defence submits that once Mr. Baptiste had been remanded pursuant to the warrant signed by Justice Griffin, he should not have been returned to an interview room at the Napanee detachment of the OPP. Rather, he should have either been taken to the nearby Quinte Detention Centre, or directly to a holding cell at the Belleville Courthouse.
[82] The Crown argues that had the police chosen to drive Mr. Baptiste to the Belleville Courthouse at 08:30 instead of 12:30 and interviewed him at the courthouse, there would have been no violation of the remand. Mr. Baptiste was not going to appear in court before 13:00 regardless of where he was lodged. Choosing to interview Mr. Baptiste in an interview room at the Napanee detachment, where video and audio recording was available, was logical and preferable.
[83] In R. v. Ashmore (2011) 267 C.C.C. (3d) 108, 2011 BCCA 18, the accused was arrested on a Friday and the following morning participated in a telephone conference hearing before a Justice of the Peace, who issued a Warrant of Committal detaining the accused in custody until the following Monday when he would appear before a Provincial Court Judge. Following that hearing, the accused was returned to his cell at the police station he had been at since his arrest. Later the same afternoon he was taken to an interview room for two hours. After being shown a videoclip during the course of that interview, the accused confessed his involvement in the murder that he had been arrested for and, at the end of the interview agreed to participate in a re-enactment. He was then returned to his cell until, approximately three hours later, he was taken to a different interview room at the police headquarters and, thereafter, left police headquarters to participate in the reenactment.
[84] After reviewing the Ontario Court of Appeal’s decision in Precourt, Frankel J.A. stated that he did not read Precourt (which was a pre-Charter case) as holding that a remand order, by itself, conferred new constitutional rights on a detainee or imposed limitations on what lawful investigative techniques could be used by the police. Continuing, at para 98:
That a remand order does not have the effect of shielding an accused from otherwise lawful investigative action is evinced by two decisions of the Court of Appeal for Ontario subsequent to Precourt; R. v. Hobbins (1980), 1980 CanLII 73 (ON CA), 54 C.C.C. (2d) 353, aff’d, 1982 CanLII 46 (SCC), [1982] 1 S.C.R. 553; and R. v. Miller (1987), 1987 CanLII 4416 (ON CA), 38 C.C.C. (3d) 252.
[85] In Miller, in a passage quoted by Frankel J.A. in Ashmore at para 103, Goodman J.A. had stated at (p. 258 C.C.C.):
Although the Code contemplates a different character of custody following the remand by a judicial officer, which requires incarceration of an accused in custodial facilities separate from mere holding cells where such facilities are available (see R v. Precourt [citations omitted]), the fact remains that the accused remains in custody and, in my opinion, contrary to the submission by the appellant, the change in the character of the custody does not affect the right to search or seizure incident to a lawful arrest.
[86] Frankel J.A. continued, at para. 104, that when the accused was interviewed at police headquarters, he was lawfully detained, as the Warrant of Committal authorized his detention at “a police lockup”. The fact that the accused had been questioned in interview rooms rather than in a cell was, in his opinion, of no consequence. In the circumstances of the case “it would be drawing too fine a distinction to say that the lawfulness of a detention is vitiated because a detainee is interviewed in another part of the building in which he is being lawfully held…”. However, the British Columbia Court of Appeal held that while the continued detention of Mr. Ashmore at the police headquarters was not inconsistent with the Warrant of Remand, it did not give the police the unilateral right to remove Mr. Ashmore from what the court regarded as a police lockup and take him elsewhere for investigative purposes (in that case a reenactment). Such a detention was arbitrary and, therefore, a violation of the accused’s Charter rights.
[87] The court in Ashmore then went on to consider the appropriate remedy for the Charter breach, applying the principles set out in R v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
[88] Section 24(2) of the Charter provides that where a court concludes that evidence has been obtained in a manner that infringes or denies Charter rights, the evidence shall be excluded if it is established, having regard to all of the circumstances, that admission of it in the proceedings would bring the administration of justice into disrepute. In Grant, the Supreme Court articulated three factors to be assessed and balanced in determining whether or not to admit or exclude evidence:
a) The seriousness of the Charter infringing state conduct (would admission of the evidence send the message that the justice system condones serious state misconduct?);
b) The impact on the breach on the Charter protected interest of the accused (would admissions sent the message that individual rights count for little?); and
c) Society’s interest in the adjudication of the case on its merits.
[89] As the defence points out, I am bound by Precourt (although the Crown observes that the Supreme Court of Canada declined an application for leave to appeal against the British Columbia Court of Appeal’s decision in Ashmore).
[90] In Precourt, Martin J.A. contemplated that there might be appropriate circumstances in which the police could conduct procedures involving accused after the issuance of a warrant of remand, for example, by participating in an identification parade. But a key holding in Precourt is that it was prima facie improper to hold an accused in police custody after he had appeared before a Provincial Judge and been remanded in custody, and that he should have been held in a custodial facility separate from “mere holding cells connected with the police function” where such a prison is available. Whereas the decision in Ashmore does not disclose whether there were other more appropriate facilities that the accused could have been lodged in, it is conceded in the present case that there was a prison (Quinte Detention Centre) literally just down the road from the OPP Napanee detachment. It follows that Mr. Baptiste’s continued detention at the Napanee detachment, whether in a holding cell or an interview room, was improper.
[91] Was this a serious breach of Mr. Baptiste’s Charter rights? In my opinion it was not. DC Thibodeau’s initial intention had been to interview Mr. Baptiste the previous evening. However, the interview was terminated because further charges (in addition to the murder charge that Mr. Baptiste was already aware of) were communicated to him by DC Thibodeau at the commencement of the interview. Mr. Baptiste invoked his right to consult again with counsel as a result of this change in the jeopardy faced by him and, quite properly, the interview was suspended. It was known that the next opportunity for Mr. Baptiste to appear in court would have been at 13:00 on Monday 3 April in Belleville. That would have been between 28-29 hours after his arrest, hence the need for him to be brought before a Justice sooner.
[92] As I apprehend the evidence given by the officers involved, they never gave serious thought to taking Mr. Baptiste a couple of kilometres up the road to the Quinte Detention Centre for the four or so hours between the Warrant of Remand and his departure to be transported to the Belleville courthouse. This was not, in my view, serious state misconduct. It was at worst a misapprehension of the obligations of the police and the rights of Mr. Baptiste, but, more likely, an oversight.
[93] I reiterate that, I do not regard the impact of the continued detention at the police station, which I agree was improper and, therefore, “arbitrary”, to have been serious. As a number of the authorities referred to, including Precourt, have held, the warrant of remand does not shield an accused from being subjected to an otherwise lawful investigation.
[94] Finally, the reliability of any evidence obtained is an important consideration when evaluating whether or not to exclude it. As McLachlin C.J. stated in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para 28:
Did the breach seriously compromise the interests underlying the right(s) infringed? Or was the breach merely transient or trivial in its impact?
[95] In my view, in the circumstances, the breach of Mr. Baptiste’s rights was at the lower end of the scale of seriousness. In particular, the breach had no real impact on Mr. Baptiste’s liberty interests. As the British Columbia Court of Appeal observed in the Ashmore case, at para 111 “having been remanded into custody, [the accused] was not free to go anywhere”.
[96] On the third Grant factor, society’s interest in an adjudication of the merits, the seriousness of the offence is not in and of itself the determining factor. It is, nevertheless, a factor. At the time, Mr. Baptiste was charged with first degree murder. The public would undoubtedly have an interest in the adjudication of that charge on its merits. The admission of the statement provided by Mr. Baptiste during the five or so hours that had lapsed between the Warrant of Remand and his appearance in court would, having regard for all of the circumstances and in particular, the relatively minor degree of infringement of his Charter rights, not bring the administration of justice into disrepute.
[97] Accordingly, I would dismiss the defence Applications to exclude Mr. Baptiste’s statements to the police on Charter grounds.
Mew J.
Released: 21 September 2020
Corrected, 1 October 2020:
Paragraph 6
The date 24 August 2020 replaced with, “31 August 2020”
COURT FILE NO.: CR-18-00015-00
DATE: 200921
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
BRANDON PHILLIP GEORGE BAPTISTE
REASONS FOR DECISION
(Applications Concerning Admissibility or Exclusion of Statements of the Defendant)
Mew J.
Released: 21 September 2020