R. v. Wise, 2020 ONSC 7717

COURT FILE NO.: 18-97

DATE: 20200205

ONTARIO

SUPERIOR COURT OF JUSTICE

WARNING

S. 648(1) of the Criminal Code applies to all motions and applications heard and determined in this proceeding before trial pursuant to s. 645(5) of the Criminal Code, where the subject-matter of the motion or application is or relates to evidence to be heard at trial. Pursuant to s. 648(1), no information concerning any part of such motion or application or the reasons for ruling on such motion or application shall be published in any newspaper or broadcast by any means, including posting or distribution over the internet.

BETWEEN:

HER MAJESTY THE QUEEN

– and –

James Wise

Defendant

Jason Pilon and Jason Neubauer, counsel for the Crown

Ian Carter and Jon Doody, counsel for the Defendant

HEARD: January 15 and 24, 2020

reasons for RULING – ADMISSIBILITY OF STATEMENTS UNDER S. 24(2)

lacelle, j.

Introduction

[1] In a prior ruling, where I reviewed the factual background for this application, I concluded that police had breached the Applicant’s s. 8 rights because they had insufficient grounds for a search of his residence in October of 2014. That search resulted in a further search and seizure of the Applicant’s property on November 11, 2016. I concluded that s. 24(2) required that the evidence obtained as a result of the invalid search in 2014 should be excluded from the Applicant’s trial on a charge of first degree murder in relation to the death of Raymond Collison.

[2] Further to that ruling, the Applicant seeks a ruling that statements made by him to DC Hyndman between November 23, 2016 and April 19, 2018, are inadmissible pursuant to s. 24(2) of the Charter. For the most part, these statements were obtained by DC Hyndman when he visited the Applicant at his apartment in the months after his first arrest for the murder of Mr. Collison on November 11, 2016. The Applicant was released following this arrest and continued to reside at his apartment (the Applicant was arrested a second time on May 31, 2018 and charged with the murder of Mr. Collison at that time). The last two statements at issue relate to visits by DC Hyndman to the Applicant after he had moved into a long-term care home. The Applicant seeks to exclude these statements from his trial because he says they are causally and contextually linked to the property that was illegally obtained as a result of the breach of his s. 8 Charter rights in 2014.

[3] While the Crown concedes that certain parts of the statements at issue must be edited to accord with the court’s prior ruling on the Applicant’s s. 8 challenge, it submits that not all of the statements at issue trigger a s. 24(2) analysis. For those statements that do, the Crown submits that editing the statements for reference to material obtained as a result of the prior searches is a sufficient remedy under s. 24(2).

[4] The issues to be determined by me are therefore twofold: 1) what statements trigger the application of s. 24(2) because they are sufficiently linked to a prior Charter breach; and 2) should any statements that are caught by s. 24(2) be edited rather than excluded.

[5] I rely on the factual overview provided in my ruling on the s. 8 application. As is set out in the factual overview for that ruling, in addition to the murder of Raymond Collison, police suspected that the Applicant had committed a number of other homicides and crimes. Those additional crimes were the subject of ongoing investigation by the police during the course of the events at issue here.

[6] The central evidence on the voir dire consisted of the viva voce evidence of DC Hyndman, as well as the notes of DC Hyndman recording his interactions with the Applicant. In some instances, the court also has notes of officers who accompanied DC Hyndman when he attended at the Applicant’s residence.

[7] The record of the statements consists of the officers’ notes. No other recording was made of the Applicant’s interactions with the officers.

Overview of the statements at issue

November 23, 2016

[8] DC Hyndman’s attendance at the Applicant’s residence on November 23, 2016 was the second time he attended the Applicant’s residence after his arrest on November 11, 2016. The first occasion was on November 16, 2016. That statement will be the subject of later argument. For the sake of context, it is sufficient to say that on November 16, 2016, DC Hyndman served the Applicant with unrelated documents. He also attempted to engage the Applicant in conversation about the people police believed he had killed. The Applicant told him he would think about it.

[9] The visit on November 23, 2016 involved the return of search-related property. DC Hyndman noted that the Applicant signed an acknowledgment for the return of the property. During this visit, DC Hyndman invited the Applicant to tell him why he killed various people. The Applicant said he was told not to talk. The officer noted he “did not deny killing”.

December 14, 2016

[10] Prior to this visit, DC Hyndman consulted with a forensic psychiatrist, Dr. Peter Collins, to obtain advice about how to approach his dealings with the Applicant. He wanted to build on the rapport he felt he had established with the Applicant with a view to encouraging him to disclose information about the murders. DC Hyndman testified that he attempted to put the advice he received into practice in the visit on December 14, 2016, as well as others.

[11] During the visit on December 14, 2016, amongst other things, DC Hyndman told the Applicant he knew he committed various crimes. DC Hyndman said he wanted to be able to let the families of the victims know what happened. He asked the Applicant if he would consider speaking to him about his crimes. The Applicant said he would consider it, but he needed to lie down.

January 12, 2017

[12] Property was returned on this visit. DC Hyndman asked the Applicant to tell him about the people he had killed so he could let their families know. The Applicant said he was not ready to talk about it yet but indicated he would in the future. The officer noted that the Applicant did not deny involvement in any of the murders – he just stated that he was not prepared to talk about them at this time.

February 2, 2017

[13] Property was returned on this visit. DC Hyndman asked the Applicant if, for the sake of their families, he wanted to talk about the people he killed. The Applicant said “no”.

February 14, 2017

[14] Property was returned on this visit and the Applicant was given notice of an application for further detention of other search-related property. DC Hyndman asked the Applicant if he had the strength to tell him about the people he killed. The Applicant responded, “not yet”. He said he would tell him about the murders “later”. DC Hyndman then showed the Applicant photographs of the victims of the murders. The officer noted that the Applicant’s eyes lit up at the crime scene photos. DC Hyndman noted the Applicant’s responses to being shown individual photos. DC Hyndman noted that the Applicant “nodded knowingly” when he was shown a photo of Raymond Collison.

February 16, 2017

[15] Property was returned on this visit. No other interaction between the Applicant and DC Hyndman was noted.

March 22, 2017

[16] In this visit, DC Hyndman discussed an article about the Applicant that had appeared in an Ottawa newspaper. As explained in his viva voce evidence, DC Hyndman went to the Applicant’s residence for the purpose of discussing the article because he wanted the Applicant to understand that he was not responsible for its release. DC Hyndman testified that he was concerned the article would shatter any trust he had obtained from the Applicant in his efforts to build a rapport with him. During this visit, DC Hyndman again asked the Applicant to tell him about the murders and said that he wanted to understand “why”. The Applicant told him “You will never understand, I don’t understand”. The Applicant said he could not tell him about the murders and the officer was wasting his time.

April 5, 2017

[17] On this occasion, DC Hyndman went to the Applicant’s apartment to talk and to give the Applicant a book entitled “Cold North Killers”. This was not search-related property. DC Hyndman testified that he believed he obtained the book from a police library. He took it with him hoping the Applicant would accept it and talk about it on a future visit. DC Hyndman noted that the Applicant “appears to be getting sicker”. The Applicant did not want the book. He did not want to talk.

April 26, 2017

[18] Property was returned on this visit. During this visit, DC Hyndman also intended to use search-related property (the map obtained from a composition book in the Applicant’s residence) as a prop in his interactions with the Applicant. In my ruling on the s. 8 Application, I excluded the composition book as evidence in the trial.

[19] DC Hyndman noted that when the Applicant looked at the map, he started to shake. Later in his notes, in what appears to be a reference to further property obtained from the search, the officer’s notes read “I want you to be strong and tell about the people you killed (more shaking) – cassette tape outstanding in Long Sault”. The officer also noted that the Applicant was having difficulty writing and that he fell out of the bath yesterday. The reference to the Applicant falling out of the tub is the only note regarding the visit in the notes of the officer accompanying DC Hyndman, PC Childerhose.

May 2, 2017

[20] Property was returned on this visit (a microcassette). DC Hyndman also presented the Applicant with a “confession sheet”. DC Hyndman read the information on the confession sheet to the Applicant and told him that he only had to tell him one thing no one else knows about the murders. One of the many questions on the confession sheet related to the killing of Raymond Collison. The Applicant was noted to listen intently as the officer read the contents of the confession sheet. The Applicant is noted to have said things like “It’s not going to change anything”, “just let things be”, “what’s done is done”, and “I guess I will die a coward”. The visit ended with the map from the composition book being provided to the Applicant. The Applicant refused to sign it and said, “It means nothing to me”.

May 5, 2017

[21] During this visit, there was no discussion of the case involving Mr. Collison. The focus was on another crime DC Hyndman believed the Applicant had committed and whether the Applicant had made a prior utterance about that event during the previous visit.

January 25, 2018

[22] This was the first visit to the Applicant after he moved into a long-term care home. During this visit, DC Hyndman served the Applicant with notice of an application pursuant to s. 490 of the Criminal Code, R.S.C., 1985, c. C-46, with respect to search-related property. The Applicant refused to sign the original. At the Applicant’s request, DC Hyndman left a sealed envelope on the Applicant’s walker.

April 19, 2018 [noted as March 19, 2018 in DC Hyndman’s notes]

[23] On this visit to the Applicant in the long-term care home, DC Hyndman provided him with a letter (dated April 19, 2018 and reproduced in his notebook) giving him notice of an application for continued detention of his composition book and day timer. The Applicant refused to sign. He told DC Hyndman to leave the notice on his walker. The Applicant declined to speak further with DC Hyndman.

The legal principles

[24] In my ruling on the s. 8 Application, I reviewed the law that applies in this circumstance. For ease of reference, I summarize those principles again here.

[25] Section 24(2) of the Charter provides that

where… 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. [Emphasis added.]

[26] The threshold requirement for determining whether evidence should be excluded pursuant to s. 24(2) is a finding that the evidence was obtained in a manner that infringed a right under the Charter. The approach to that determination was considered in R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.). The court held the following at paras. 44 and 45:

There are two components to s. 24(2). The first is a threshold requirement. The impugned evidence … must be obtained “in a manner that infringed” a right under the Charter. If the threshold is crossed, one then turns to the evaluative component of s. 24(2) — could the admission of the impugned evidence bring the administration of justice into disrepute?

The jurisprudence establishes a generous approach to the threshold issue. A causal relationship between the breach and the impugned evidence is not necessary. The evidence will be “obtained in a manner” that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous: R. v. Goldhart (1996), 1996 CanLII 214 (SCC), 107 C.C.C. (3d) 481 at 492-97 (S.C.C.). [Emphasis added.]

[27] The Court of Appeal has more recently directed that a court should consider whether any of the Charter breaches that occurred before the police obtained the evidence were “integral to the investigative process” that ultimately led to the acquisition of the evidence: R. v. Boutros, 2018 ONCA 375, 361 C.C.C. (3d) 240 at paras. 17-22. This is in accordance with the approach taken in R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, where the Supreme Court ruled that illegal perimeter searches had tainted a search that had proceeded under the authorization of a warrant that could have issued lawfully without the information acquired during the unlawful perimeter searches. The court held the following at p. 38:

The warrantless searches, while perhaps not causally linked to the evidence tendered, were nevertheless an integral component in a series of investigative tactics which led to the unearthing of the evidence in question. It is unrealistic to view the perimeter searches as severable from the total investigatory process which culminated in discovery of the impugned evidence. [Emphasis added.]

[28] It is clear from the authorities that a link to a Charter breach will not be sufficient to trigger a s. 24(2) analysis where that link is “tenuous” or “remote”: R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235 at para. 21, citing R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463 at para. 40 and Plaha at para. 45. Nor will it be sufficient where there is “nothing to connect the violation” with the further investigative steps that lead to the evidence at issue (Boutros at para. 24). It is not enough that the Charter violation has occurred in the same investigation: Boutros at para. 25.

[29] However, a strict causal relationship between the breach and the evidence subsequently obtained is not necessary. The courts have adopted “a purposive and generous approach” to determining whether “the connection required under Goldhart and Plaha” has been established: Wittwer at paras. 21-22.

The positions of the parties

[30] The defence submits that most of the statements between November 23, 2016 and April 19, 2018 were obtained during occasions when police returned property to the Applicant that had been obtained as a result of an illegal search, or when police were serving notices associated with that property. As regards other occasions when the police attended the Applicant’s residence, the defence says the statements are tied contextually and causally to the times when the visits related to the search-related property. The officer was using each visit to build rapport with the Applicant in an effort to have him discuss or confess to the murder at issue in this case and others. The defence says that the officer deliberately returned property to the Applicant in a piecemeal fashion because it permitted an opportunity to enter the Applicant’s residence and speak with him. While the officer may have had additional reasons for his visits, it was the return of property from the illegal search that permitted him “to get in the door” and engage the Applicant. The defence submits it is speculative to think that the Applicant would have spoken with DC Hyndman but for the return of property that began most of the visits.

[31] The Crown argues that s. 24(2) is not triggered except where the visits to the Applicant included a discussion of property obtained during the illegal searches. In those instances, the Crown submits that the court should excise the offending portions of the interaction between DC Hyndman and the Applicant.

[32] In all other instances, the Crown argues that s. 24(2) of the Charter is not engaged and the statements should not be excluded. The Crown emphasizes that a prior breach in the investigation is not sufficient to establish the required link between the breach and subsequently obtained evidence. The Crown submits that the prior breach was not integral to the investigative process that produced the Applicant’s statements, except where property is expressly used by the officer to spur discussion. The Crown submits that the fact that police were also at the Applicant’s residence to return property on some occasions is not a sufficient link to the prior breach, or a reason to exclude the statements wholesale. The return of property or service of notices was an adjunct to the rapport building the officer was attempting with the Applicant. The officer would have engaged in this attempt to build rapport regardless of any need to return property to the Applicant. According to the Crown, the officer’s efforts to build rapport with the Applicant were a separate and distinct investigative tactic, not connected to the prior breach, and it is this tactic which resulted in the statements being made.

Analysis

Issue #1: What statements trigger the application of s. 24(2)

[33] DC Hyndman testified during the voir dire. I accept his evidence that the Applicant was a person of interest in the death of Raymond Collison, and other homicides, prior to the breach of his s. 8 rights and afterwards. I also accept his evidence that the interest police had in speaking with the Applicant was “accelerated” because of the Applicant’s poor health and his age.

[34] During DC Hyndman’s viva voce evidence, the parties canvassed his reasons for returning the Applicant’s property in the manner that he did. The officer testified that he would have preferred to have returned the property on one or two occasions, but he felt pressure to return the property as a result of his discussions with a crown attorney. He returned the property as he determined it had no evidentiary value, notwithstanding that (prior to the defence request for the return of the property) he had authorization to hold onto it for a longer period of time.

[35] The parties agree that the search related property was seized on November 11, 2016. They further agree that beginning in January 2017, the defence took steps to expedite the return of the property to the Applicant. DC Hyndman was aware of the defence request for the return of property. The efforts undertaken by defence to seek return of the property included asking the Crown to take steps to have the property returned and filing a Notice of Application under s. 490(9)(c) of the Criminal Code (signed on January 16, 2017) seeking return of the property.

[36] The evidentiary record before me is clear that prior to any communication from defence counsel about this issue, property had been returned to the Applicant at least once, which provides some basis to conclude that regardless of communication from defence, the return of the property would necessarily have occurred over at least two visits, if not more.

[37] However, in my view, nothing much turns on this. This is because the analysis as to whether s. 24(2) is triggered does not turn on the officer’s intentions or the bona fides of his investigative tactics. Regardless of these issues, the focus of the analysis is whether, after a review of the entire course of events, the breach and the obtaining of the subsequent evidence can be said to be part of the same course of conduct, either temporally, contextually, or causally.

[38] On those occasions when the officer is either returning search-related property or serving notices about that property, I am satisfied that there is a causal and contextual connection between the illegal search and the interaction between DC Hyndman and the Applicant. The link between the return of the property (or service of notices) and the statements made by the Applicant cannot be said to be “tenuous” or “remote”. The return of search-related property was, in the language of Grant, “an integral component in a series of investigative tactics which led to the unearthing of the evidence in question.” I further find that, as in Grant, it is “unrealistic” to view the property return as severable from the total investigatory process which culminated in the visits to the Applicant by DC Hyndman. It is unrealistic to sever the statements obtained by DC Hyndman after he attends at the Applicant’s door with the intention of returning property to him from the interaction that follows between the Applicant and DC Hyndman.

[39] This conclusion is even stronger having regard to how the interactions unfolded on certain occasions. In some of the visits, DC Hyndman’s notes indicate the issue of the return of property is referenced not only at its commencement, but at other stages of DC Hyndman’s time with the Applicant. On still other occasions, there are discussions about some of the search-related property, particularly the map from the composition book. It is an easy conclusion that the statements made on those occasions are causally and contextually related to the prior breach and that the use of the map as a prop in speaking with the Applicant is an investigative tactic which leads to statements being made.

[40] The officer made the choice to return property to the Applicant himself, rather than delegate that task to an officer who was not engaged in building rapport with the Applicant. I find he further chose to use the occasions when he was returning property or serving notices to engage in further investigation during the same visits. Given the contents of DC Hyndman’s notes, it is clear that the officer’s efforts to build rapport centred on attempts to have the Applicant confess or provide information about various offences. Other means of rapport building, if they occurred, are not reflected in the notes.

[41] To be clear, there had been no determination at this time that the prior search was invalid. The officer had no reason to believe anything other than that the property had been obtained during a valid search process. There was nothing wrong with the officer’s conduct, even if he did use the opportunities to return the property to engage the Applicant in conversation. But, as I have said, what the officer knew, believed, or intended is not the issue here. The dual purposes he had for some of his visits allow for the conclusion that returning search related property provided the opportunity to “get in the door”, as the defence suggests, and engage the Applicant in further conversation. This informs the conclusion that the prior breach is causally and contextually related to his interactions with the Applicant after returning search-related property or notices to him.

[42] There are, however, occasions where DC Hyndman attended at the Applicant’s residence for reasons wholly removed from the return of property and where nothing relating to the illegal search is mentioned. The defence argues that the frequent occasions where the visits included interaction relating to search related property created a means for the officer to gain entry to the Applicant’s residence that became a pattern. This pattern of engaging the Applicant in this way is what establishes a link to the search-related property – without having established this pattern, the Applicant would never have engaged with the officer on other occasions. According to the defence, the prior breach is therefore an integral component of these additional visits, and it taints them too.

[43] I am not persuaded that the link in these instances is made out. I accept that police had a long-standing interest in speaking with the Applicant. The defence does not suggest, and nor could it, that every interaction police had with the Applicant was tainted by the s. 8 breach after that breach had occurred. I am satisfied that occasions where police returned property to the Applicant may be severed from wholly different occasions when they attended at his residence and spoke to him for unrelated reasons and where the subject of the search or the search-related property were never addressed.

[44] On this point, I have considered the Applicant’s submission regarding the impact of the newspaper article discussed by DC Hyndman with the Applicant on March 22, 2017. Defence argues that because the newspaper article referenced the November 11, 2016 search in its by-line, this is a further connection to the prior breach. This submission is not supported on this evidentiary record. While DC Hyndman was not certain which of the articles in the four-part newspaper series he was discussing with the Applicant on March 22, 2017, he was clear that he did not have a copy of the article with him. I accept the officer’s evidence on this point. I am not satisfied the Applicant saw this particular article or its byline at anytime, let alone during DC Hyndman’s visit. I am not persuaded that this article and its discussion establishes a connection to the prior breach.

Issue #2: Should the statements caught by s. 24(2) be edited or excluded

[45] As I have indicated, the Crown urges the court to edit any statements engaging s. 24(2) rather than exclude them.

[46] In determining the appropriate remedy under s. 24(2), I rely on my prior analysis of this issue in my ruling on the s. 8 application. I have been provided with no compelling reason, nor any authority decided pursuant to s. 24(2) of the Charter, that suggests I should edit the statements rather than exclude them. The fact that the court may engage in the editing of statements in other contexts (e.g. to ensure irrelevant or prejudicial material is not placed before the trier-of-fact) does not mean that this is an appropriate remedy where a statement’s content is impugned because of a Charter breach.

[47] In any event, the analysis in Wittwer provides some guidance here. In that case, the Supreme Court concluded that the entirety of a lengthy videotaped statement of an accused should be excluded because police had, four hours into the statement, made use of an earlier statement that they had obtained from the accused in a manner that infringed his constitutional rights under the Charter. There was no editing of the statement to excise only those portions which occurred after the tainting event. The court excluded the whole of the statement reasoning that “[t]o hold otherwise is to invite the perception that the police are legally entitled to reap the benefit of their own infringements of a suspect’s constitutional rights”, which would bring the administration of justice into disrepute: at para. 26.

[48] While this case is different than Wittwer in that the police cannot be said to have used evidence they knew to have been illegally obtained, I am not satisfied that this factual difference between the cases justifies the remedy suggested by the Crown. The caution in Wittwer about permitting police to reap the benefit of their own infringements of constitutional rights still applies.

[49] In the end, the fact that lines of the officer’s notes may be severable and certain of the Applicant’s utterances may be isolated from them does not mean that there is no contextual link between the prior breach and the interaction that occurs between the Applicant and DC Hyndman on those occasions when he is attending at the Applicant’s residence, at least in part, to address issues pertaining to search-related property. I am not satisfied that editing the statements is sufficient to ensure that information obtained in a manner that violated the Charter does not remain. The lack of a complete recording of the interactions between DC Hyndman and the Applicant reinforces that conclusion. Consequently, I conclude that the statements must be excluded in their entirety.

Conclusion

[50] The statements obtained on the following dates trigger s. 24(2) and are inadmissible in the trial for the reasons provided above: November 23, 2016, January 12, 2017, February 2, 2017, February 14, 2017, February 16, 2017, April 26, 2017, May 2, 2017, January 25, 2018, and April 19, 2018.

[51] The statements from December 14, 2016, March 22, 2017, April 5, 2017 and May 5, 2017 do not trigger s. 24(2) and are not excluded pursuant to that provision.

[52] As agreed by the parties, any remaining issues with respect to the admissibility of the statements which are not excluded pursuant to s. 24(2) of the Charter will be addressed following further discussions between the parties and, as required, additional legal argument.

The Honourable Justice Laurie Lacelle

Released: February 5^th^, 2020