Court File and Parties
COURT FILE NO.: 8239/20
DATE: 2021-04-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
W. Trent Wilson/Robert Skeggs, Counsel for the Crown
- and -
WAYNE MCLEOD
Phara Bacchus/Arun S. Maini, Counsel for the Accused
HEARD: January 18, 19, 21, 22, 25, 27, 28, 29, February 17, 19, 23, 24 and 25, 2021
RULING ON VOIR DIRE
GAREAU J.
[1] The accused, Wayne McLeod, is charged with second degree murder. The trial is scheduled to proceed, without a jury, on April 26. 2021.
[2] For a total of 14 days in January and February 2021, the court heard evidence related to pre-trial applications brought both by the Crown and the defence. Several of these applications (section 8 of the Charter and hearsay) were resolved during the course of the hearing.
[3] Left to be adjudicated is whether the 911 call made by the accused to Catherine Burke is admissible into evidence and whether a statement made by the accused to Detective Constable Steven Groot on November 15, 2018 is admissible into evidence.
[4] The following is my decision on these issues. More fulsome reasons will follow, but I thought it was important to provide counsel with my ruling on the admissibility of this evidence with the trial fast approaching.
911 Call
[5] On the issue as to the 911 call portion made by the accused to Catherine Burke, I find that Catherine Burks is not a person in authority. I further find that at no time during Mr. McLeod’s interaction with Ms. Burke was he detained within the meaning of the Charter or as defined by the jurisprudence.
[6] With respect to the totality of the 911 call, I find that at no time was Mr. McLeod detained while talking to the crisis negotiator, Andrew Kraemer. I find that the detention of Wayne McLeod was crystallized at 11:02 a.m. on November 15, 2018 when he was confronted by Officer William Lucia outside his home at 50 Valley Crescent, Elliot Lake, Ontario and was directed by Officer Lucia as follows, “Wayne, it’s the police, don’t move”. Almost immediately thereafter, Mr. McLeod, who retreated back into the home, was brought to the ground by the police, bitten in the ear by a police dog, and formally arrested. I find that throughout the 911 call with Catherine Burke, which lasted from 5:42 a.m. to 6:17 a.m., Wayne McLeod was a willing participant and this call was voluntary. Accordingly, the portion of the 911 call made by Wayne McLeod to Catherine Burke is found to be admissible and shall be received into evidence at the trial.
Statements Given by Wayne McLeod to Constable Steven Groot on November 15, 2018
[7] On the evidence before me, I find that the statement given by Wayne McLeod to Constable Steven Groot was voluntarily given by him applying the principles set out in R. v. Oickle, 2002 SCC 38, 2002 S.C.C. 38.
[8] I am satisfied beyond a reasonable doubt that there were no threats, inducements, promises made, coercion applied or oppression in the circumstances which Mr. McLeod found himself in which his will to speak freely to Officer Groot was overborne.
[9] Furthermore, I find that there was no nexus between the interaction that Wayne McLeod had with the crisis negotiator Andrew Kraemer in the morning of November 15, 2018 and his statement to Officer Groot in the evening of November 15, 2018 which taints the voluntariness of the statement.
[10] The evidence satisfies me beyond a reasonable doubt that Wayne McLeod had an “operating mind” when he gave the statement to Officer Groot and was fully aware of what he was saying, that he was saying it to a person in authority, that he had a right to silence, and that what he said could be used against him to his detriment.
[11] I am satisfied beyond a reasonable doubt that the statement made by Wayne McLeod to Detective Constable Groot on the evening of November 15, 2018 was made voluntarily.
[12] Mr. McLeod was not the victim of oppression nor were there any inducements, threats, or promises made to him to obtain a statement. The accused had an operating mind and the statement was not made in oppressive circumstances or as a result of oppressive circumstances.
[13] With respect to the Charter issues raised with respect to the statement, I find that the statement given by Mr. McLeod to Detective Constable Groot was after his right to counsel under section 10(b) was properly given to him, both with respect to the informational and implementational aspects of section 10(b). On the evidence before me, Mr. McLeod was cautioned and given his rights to counsel on numerous occasions by numerous officers on November 15, 2018, the first time by Constable Ariss at 11:11 a.m. when the accused indicates to Constable Ariss that he wishes to speak to counsel. Mr. McLeod does in fact speak to duty counsel from 12:41 p.m. to 12:47 p.m. on November 15, 2018.
[14] I find that the delay from 11:11 a.m. to 12:41 p.m. was reasonable on the facts of this case given that Mr. McLeod was injured and required medical attention, given the fact that a mental health assessment had to be completed for him, and given the fact that Detective Constable Groot had to ensure that Mr. McLeod’s call to counsel was able to be made in private.
[15] In my view, the fact that the call was of six minutes in duration is of no consequence given there is ample evidence that Mr. McLeod received sound legal advice, which he understood, but chose not to follow. I find on the evidence before me that Mr. McLeod was fully aware that he had the right to silence – the right not to speak to the police and the right not to make a statement to them and that he was fully aware that any statement could be used in evidence against him.
[16] I find that the statement made by the accused, Wayne McLeod, to Detective Constable Steven Groot from 8:21 p.m. to 11:21 p.m. on November 15, 2018 was fully voluntary and freely given and was Charter-compliant.
[17] As a result, the statement is admissible as evidence at the trial of the accused.
“original signed by Justice E. Gareau”
Gareau J.
Released: April 1, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
WAYNE MCLEOD
Ruling on voir dire
Gareau J.
Released: April 1, 2021