Court File and Parties

COURT FILE NO.: CR-18-70000678 DATE: 20200211 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty the Queen, AND: H. W.

BEFORE: S.F. Dunphy J.

COUNSEL: Ms. Jill Witkin and Ms. Elizabeth Moore, for the Crown Mr. Phil Klumak, for the Accused

HEARD at Toronto: February 3, 4 and 5, 2020

Reasons for Decision – Blended Voir Dire

[1] Mr. H.W. is charged with sexual assault arising from an incident that occurred near the end of a small wedding reception held at a downtown Toronto restaurant near closing time on October 9, 2016. He was arrested a year later on October 16, 2017 (by arrangement made three weeks earlier).

[2] Prior to jury selection, I heard a number of applications from Crown and defence. By agreement of the parties, the hearing proceeded on a blended basis. The following are the applications that were argued before me:

a. The application of the Crown for a declaration that the statements given by the accused to police on January 27, 2017 and February 13, 2017 were voluntary and are admissible in evidence at his trial;

b. The application of the defence for a declaration that the January 27, 2017 statement given by the accused was procured by police in violation of his rights pursuant to s. 10(b) of the Charter and for an exclusion of same pursuant to s. 24(2) of the Charter;

c. The application by the defence for a stay of these proceedings pursuant to s. 24(1) of the Charter by reason of pre-charge and post-charge delay which are alleged to have infringed the rights of the accused pursuant to s. 7 and s. 11(b) of the Charter.

[3] During the course of the hearing, the defence admitted the voluntary nature of the second statement given by the accused (on February 13, 2017) and the hearing was thus concerned solely with the admissibility of the first statement (January 27, 2017). On February 10, 2020 I allowed the defence application to exclude the January 27, 2017 statement of the accused from evidence but dismissed all other defence applications for reasons to follow. These are those reasons.

[4] This is not one of the clear cases where a stay of proceedings premised on pre-charge delay can be considered. Police possessed evidence of a sexual assault and an uncontradicted and indeed uncontested identification of the accused as the alleged assailant more than seven months before arranging to arrest him. However, I find that the decision of the investigating officer to seek further evidence corroborating or contradicting the conflicting accounts of the incident from the complainant and the accused and thereafter to seek legal advice in relation to the proposed case was both responsible and reasonable in the circumstances. There is no concrete evidence of actual prejudice to the fair trial of the accused that occurred during the period of alleged delay.

[5] I find that the accused was not deprived of his s. 11(b) Charter right to trial within a reasonable time. The time from the date of the arrest of the accused on October 16, 2017 until the anticipated end of this trial on February 21, 2020 is well under the presumptive Jordan ceiling of 30 months. The judicial pre-trial in Superior Court proceeded without the defence objecting to the April 2020 Jordan date represented to the pre-trial judge by the parties. The current trial date was fixed after a significantly earlier proposed trial date proved to be unavailable to the parties and with a trial confirmation form that contained no indication of Jordan distress. There is no evidence of any effort to secure an earlier trial date when the present date was fixed at the time or thereafter. This matter proceeded efficiently and reasonably from start until trial. The defence cannot equate the lack of chargeable defence delay with a sustained effort to take meaningful steps to expedite matters. Both sides did what they should do: act reasonably and co-operatively to move efficiently forward.

[6] While perfection is not a standard required of defence counsel pursuing an expedited hearing, mind-reading is not a required skill set of the pre-trial judge or trial coordinator either. A party seeking an expedited hearing must take some concrete steps to manifest that intention – remaining silent and submitting forms with the “usual” Jordan date will not suffice. This matter did not take markedly longer to be reached than it ought to have done in all of the circumstances.

[7] Finally, I am satisfied that Mr. W. was subject to a form of psychological detention at the time of his January 27, 2017 statement having regard to the totality of the circumstances present and that the interests of justice heavily favour its exclusion pursuant to s. 24(2) of the Charter.

[8] It is true that this case does not present with many of the indicia of intimidation found in other cases where psychological detention has been found – the interview took place in the home of the accused by pre-arranged appointment and was attended by two plain-clothes detectives. However, a door may be opened without consent as effectively with a lock-pick as with a battering ram. The cumulative impact of the following circumstances operated to direct the course of events in a manner which did not permit the free operation of the will of the accused to be brought to bear:

a. Two detectives showed up in the home of a deferential young man without sophistication or prior experience with police. They had driven three hours from Toronto for the purpose and had arranged to do so with his parents (in whose home he continued to live) beforehand. This circumstance resulted in an already deferential young man feeling that he was obliged to co-operate with them.

b. Mr. W. was provided with neither the name of the complainant nor with any material particulars of the complaint being investigated at any point during the interrogation.

c. The investigating officer fundamentally misled Mr. W. as to the nature of the jeopardy he faced. He was assured that he was only a person of interest in the inquiry because police had no evidence of his culpability. This was plainly untrue. The complainant had positively identified him as her assailant in a sexual assault. Mr. W. was in fact the only person being investigated as the author of the assault she described. There was abundant evidence of his culpability whether or not police were sufficiently convinced by the complainant’s evidence to proceed with an arrest at that time.

d. The investigating officer always intended to provide Mr. W. with his rights to counsel at the interview because procuring a DNA sample from him was in fact the (undisclosed) primary purpose of the visit. I find that police deliberately timed this request (and providing Mr. W. with his right to counsel) to be made after Mr. W. provided his complete statement without the benefit of the advice of counsel. Proceeding in any other order would almost certainly have resulted in the entire trip having been in vain.

e. I conclude that the investigating officer was aware that Mr. W. relied upon his parents for advice. In arranging for the interview, the investigating officer advised them that their son did not require a lawyer and that charges were not likely to be forthcoming. It matters not whether he did so expressly or in words designed to convey that impression to them. He also conveyed the same understatement of the peril facing their son as a mere person of interest in respect of whom there was no evidence of his culpability.

[9] A six-hour round trip to conduct the interview and seek a DNA sample would have almost certainly been in vain had Mr. W. or his parents possessed even a partial appreciation of the true state of affairs. A combination of deception and selective disclosure ensured that this did not occur. Mr. W.’s decision to provide police with a statement that day was procured not given.

[10] The exclusion of this statement will have little to no material impact upon the ability of the Crown to prove its case. The Crown proposed to use it solely for the purpose of impeaching the credibility of the accused. Given the circumstances under which it was procured, including the presence of the parents of Mr. W. throughout, it would be of only dubious value for that purpose at all events. The Grant analysis heavily favours exclusion.

[11] In light of my decision regarding the exclusion of the statement pursuant to s. 24(2) of the Charter, it was not necessary for me to rule on the Crown’s application.

S.F. Dunphy J. Date: February 11, 2020