COURT FILE NO.: CR-19-4417
DATE: 20220916
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
GRANT SHUBERT
Defendant/Applicant
K. Hutchinson, for the Crown
R. Wellington, for the Defendant/Applicant
HEARD: April 4-7, 2022 and June 13, 2022
RESTRICTION ON PUBLICATION
Pursuant to s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast or transmitted in any manner.
RULING RE: CHARTER SECTIONS 8, 9, 10 AND 24(2)
CHARNEY J.:
[1] The Applicant, Grant Shubert, is charged with obtaining for consideration the sexual services of a person under the age of 18 years contrary to s. 286.1(2) of the Criminal Code, trafficking cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act (CDSA) and theft of a cell phone contrary to s. 344 of the Criminal Code.
[2] The Applicant brings this application for a declaration that his rights under sections 8, 9 and 10 of the Charter were infringed and that the evidence obtained pursuant to the infringements be excluded pursuant to s. 24(2) of the Charter. In particular, the Applicant seeks to exclude oral statements made by him to the police when they commenced their investigation, and a formal witness statement signed by the Applicant immediately before he was arrested.
[3] There are two other statements that are not at issue in this Application: the Applicant’s phone call to 911, which he concedes was voluntary, and a transcript of the Applicant’s May 24, 2019 video interview with the police, which the Crown is not seeking to rely on.
[4] The Crown has brought an application for a ruling on the voluntariness of three statements: (i) the Applicant’s 911 call, (ii) the conversations between the Applicant and P.C. Howe and P.C. Carr before his arrest, and (iii) the formal written statement provided by the Applicant to P.C. Carr immediately before he was arrested.
[5] As indicated above, the Applicant concedes the voluntariness of his call to 911, but opposes the voluntariness of the other two statements.
Facts
[6] On May 23, 2019 at 5:02 a.m. the Applicant called 911 to report that someone was trying to break into his house on Morningside Road. He told the 911 operator that someone was smashing the windows at the front of his house. He told the 911 operator that he could not see who it was, but that the person had smashed several windows in the front of the house. Windows were being smashed as he spoke to the 911 operator. He could hear a female screaming outside the house. He heard someone at the door and was concerned that the person might have come inside. The police were sent to his home. He told the 911 operator that he lived alone and that no one had been to his house that day. He stayed on the phone with the 911 operator for just over 8 minutes.
[7] When the police arrived, the 911 operator told the Applicant that she would let him go and that the police officers are “gonna come and speak with you, okay?”. The Applicant responded “Okay”, and thanked the operator.
[8] The police received a radio call that there was a break and enter in progress at the home of the Applicant. They arrived at the Applicant’s home in just under 6 minutes The home is on a large property set far back from the road at the end of a long driveway. It was just before sunrise, so it was still dark outside.
[9] As the police arrived, they heard the sound of glass breaking. They parked on the roadway and walked up the driveway to the house. They saw a pick-up truck on the driveway with a smashed window and broken planters. There were broken windows at the front of the house.
[10] When the officers approached the house, they were approached by a young female (“the female”) who was distraught and crying.
[11] Police Constable Kotsopoulos stayed with the female while other officers went to the front of the house.
[12] P.C. Kotsopoulos testified that the female said: “Help me, he stole my phone, help me get it back.” The female was obviously upset and had a cut on her wrist that was bleeding. She appeared intoxicated.
[13] P.C. Kotsopoulos asked her what had happened. The female stated that she cut her wrist breaking the glass to try to get her phone. He could smell alcohol on her breath. The female was hysterical. She stated: “I need my phone back, he took it from me”. P.C. Kotsopoulos asked who took her phone, and she responded: “Grant Shubert, he’s a pedophile. I have pictures of his dick so I can show you guys”.
[14] Given the cut on the female’s wrist, P.C. Kotsopoulos was concerned for her safety and called an ambulance. The female told P.C. Kotsopoulos that she did not care if the police charged her. She stated that she threw rocks at the windows and used a pick-axe to break the windows.
[15] Given her statements and the broken windows he had observed, P.C. Kotsopoulos determined that he had reasonable and probable grounds to arrest the female for mischief, and placed her under arrest at 5:16 a.m. At that time the female was the only person being investigated. She was handcuffed and searched incident to the arrest.
[16] The female told P.C. Kotsopoulos that she had a jacket and a purse somewhere and the police searched the immediate area and found her jacket and purse. When the ambulance arrived at 5:18 a.m. she was uncuffed so she could be examined for her wrist injury.
[17] While she was being examined, the female told P.C. Kotsopoulos that Grant Shubert had been having sex with her since she was 15 years old, and she went to his house to get evidence. By this point P.C. Kotsopoulos had looked through her purse and found a piece of paper with her name on it. He recognized her name from a previous investigation and he knew that she was a youth.
[18] The female spent about 11 minutes in the ambulance but refused any medical attention. She was recuffed at 5:29 a.m. and put into the back of the police cruiser where she was read her youth version (YCJ) rights to counsel at 5:31 a.m. The female told P.C. Kotsopoulos that she wanted to speak to her aunt and to duty counsel.
[19] The female was read her caution at 5:38 a.m., to which she responded: “Yes, I’d like to say that he is a pedophile and he deserved it, but I’m sorry for the crime I committed.”
[20] P.C. Kotsopoulos then tried to find the female’s phone. He called her number from another phone to see if he could hear it ring, but it went straight to voicemail. He looked in the area in the front of the house and the driveway where the police had found her jacket and purse to see if he could find her phone, but he could not. P.C. Kotsopoulos was looking for the cell phone because it was the female’s property, and he hoped that her aunt’s phone number would be on it so that she could call her aunt.
[21] At this point P.C. Kotsopoulos went to the house. There were already other officers there speaking with the Applicant, who they knew was the man who had called 911. P.C. Kotsopoulos entered the house and told the other officers who were inside speaking to Mr. Shubert that he had arrested the female for mischief and was going to take her back to the station. He asked Mr. Shubert if he knew where the female’s cell phone was, and Mr. Shubert informed him that he didn’t know anything about the cell phone and he didn’t know who the female was. This is one of the statements that the Applicant seeks to have excluded. P.C. Kotsopoulos left and took the female back to the station at 6:01 a.m.
[22] P.C. Kotsopoulos testified that he did not ask about the phone as part of any investigation. He asked about it because it was the female’s property, and she was very concerned about getting it back.
[23] P.C. Mulick of the canine unit was also called to the property at 5:10 a.m. to assist the investigation of a reported break and enter.
[24] By the time P.C. Mulick arrived at 5:15 a.m., the female had been arrested, but other officers thought that they could still hear breaking glass at an adjoining property to the west. P.C. Mulick and the dog were deployed to search the perimeter of the large property and the adjoining properties to ensure that there was no one on these properties.
[25] P.C. Mulick began by searching the property to the west and then the property to the east. The dog did not detect fresh human scent at either of those properties and P.C. Mulick could not see any broken glass at the adjoining properties. P.C. Mulick did not deploy his dog near the Applicant’s residence because he knew that there was fresh human scent from the female and the other police officers who had conducted the perimeter check of the property. After conducting the investigation of the adjoining properties, P.C. Mulick let the other officers know that he had not found anything and left at 5:44 a.m.
[26] P.C. Kotsopoulos and the female arrived at the station at 6:15 a.m., and the female was taken to the booking area. While sitting with the female in the booking area, P.C. Kotsopoulos observed red scratches on the female’s neck, and asked her how she got them. She replied: “Grant attacked me when he went to get my phone”.
[27] At this point P.C. Kotsopoulos concluded that there were reasonable and probable grounds to arrest the Applicant. The scratches he observed were consistent with an assault.
[28] P.C. Kotsopoulos radioed the officers who were still on the scene to call into the Criminal Investigation Bureau (CIB) which is on the same floor as the booking area so that he could inform them of this information. At 6:51 a.m. one of the officers on scene called the CIB, and P.C. Kotsopoulos informed him that there were grounds to arrest the Applicant for assault. That conversation lasted about 5 minutes.
[29] P.C. Kotsopoulos testified that when he was on the scene, he was investigating a break and enter call, and had seen the damage to the truck and house windows. While the female was clearly upset – he described her as hysterical - and making allegations, his focus was on her as a suspect for the alleged break and enter, and on getting medical attention for the female due to the cut to on her wrist. It was only when they returned to the station and the female had calmed down and he saw the scratches on her neck that he remembered her allegations at the scene about the Applicant taking her cell phone, and he was able to put everything together. Until he saw the scratches on the female’s neck, he was only investigating mischief, and the female was his only suspect.
[30] At 6:58 a.m. P.C. Kotsopoulos called duty counsel for the female and relayed the information about the charge laid. The female spoke to duty counsel at 7:01 a.m.
[31] P.C. Kotsopoulos also testified that he would not investigate allegations of sexual assault because there is a special unit assigned with trained investigators to conduct those investigations.
[32] Significantly, there is a video of the interaction between P.C. Kotsopoulos and the female in the booking area of the station. In my view, this video corroborates P.C. Kotsopoulos’ testimony regarding his interaction with the female at the station. The primary focus of the police in the booking video was to identify an adult person to contact on behalf of the female minor. P.C. Kotsopoulos explained to her that because she is a minor, she cannot simply be charged and released without some sort of plan for her care. The female confirmed that she wants to speak to a lawyer. She repeated that she wants the police to contact her aunt and not her mother, but she did not have the contact information for her aunt. At approximately 6:26 a.m. P.C. Kotsopoulos noticed the scratches on the female’s neck and asked her how she got them. The female was initially reticent, and only answers: “him”. At 6:35 a.m. the female stated that “Grant was fighting me.”
[33] When the booking sergeant (Sergeant Khoshandish) arrived, he asked the female about her injuries. He could see the bandage on her hand and wrist, and P.C. Kotsopoulos pointed out that she also had scratches on her neck.
[34] In his testimony, Sergeant Khoshandish explained that he asked about the injuries to ensure that the female had received proper medical attention and to determine if the injuries were self-inflicted. The female was a minor, about to be placed in a cell by herself, and he had to explore these questions to ensure her safety. He asked these questions even though the female had not yet talked to a lawyer.
[35] At approximately 6:46 a.m. the female explained that most of the injuries (the cuts to her hand and wrist) resulted from her breaking the windows but the scratches on her neck came from Grant attacking her by his door that night. P.C. Kotsopoulos asked: “Are you alleging that he assaulted you, is that what you are saying, it happened tonight, that he assaulted you?” and the female responds “yes…he literally threw me down by his door.”
[36] At that point P.C. Kotsopoulos said to the booking sergeant: “I should relay this information” and he made immediate arrangements to phone the officers who were still on the scene.
[37] As indicated above, when P.C. Kotsopoulos returned to the station with the female, four other officers remained at the house on Morningside Drive to continue the investigation of the reported break and enter.
[38] These officers had little interaction with the female. When they arrived at the house and walked up the driveway they observed that she was distraught and crying. P.C. Carr heard the female say: “Help me, he has my phone”. These officers went to the house to investigate the reported break and enter and speak to the occupant who had called 911. They wanted to determine whether there were any intruders on the property, to assess the damage, to determine whether anyone had gained access to the house, and to make sure that no one was injured. The police viewed the female as a suspect in the reported break and enter but did not yet know whether there was anyone other than the female involved in the reported break and enter or mischief.
[39] These police officers conducted an outdoor perimeter check of the property to look for other suspects or damage, and checked the back and front doors of the property. The police knocked on the front door and called through the broken window to identify themselves to the occupant. The Applicant opened the front door and identified himself as the tenant who called 911. He told the police about the smashing glass and the suspected break and enter. He told the police that he was alone in the house. The police explained that they were there to investigate the reported break and enter, and the Applicant invited the police inside to conduct a safety check. The police entered the property. They looked around for 5 to 10 minutes to make sure that no intruder had broken into the house. The Applicant appeared cooperative throughout.
[40] While conducting the safety check P.C. Carr made a note that there was no cell phone in plain view.
[41] When P.C. Carr learned the name of the female who had been arrested, he asked the Applicant if he knew anyone by that name. The Applicant replied: “I know lots of K’s,…The name sounds familiar, but I’m not 100% sure, it’s possible I know her, but I can’t picture her.” This is another of the statements that the Applicant is seeking to have excluded.
[42] The police were provided with surveillance video from the house. The video showed the female pacing in front of the house and screaming and smashing windows. At one point the female picked up a piece of broken glass and cut her hand or wrist with the glass. The Applicant was asked if he knew the female in the video and he denied knowing her.
[43] At this time the police attending the Applicant’s residence still thought that they were investigating the reported break and enter, or at least mischief, and viewed the Applicant as the victim. At the same time, the police who interviewed the Applicant acknowledged that they did not believe his answer to the question of whether he knew the female who had been arrested.
[44] The police generally take a statement from any victim/witness in a property damage investigation. In accordance with that general practice, P.C. Carr asked the Applicant if he was willing to give a statement setting out what had happened that night and the Applicant indicated that he was. P.C. Carr went to his cruiser and got his computer, and conducted the interview in the Applicant’s living room. The interview commenced at 6:01 a.m. P.C. Carr typed the statement on his computer.
[45] P.C. Carr testified that he typed the statement verbatim. He believed at the time that he was investigating a mischief charge and that the female who had been arrested was the suspect.
[46] P.C. Carr asked the Applicant if he had the arrested female’s cell phone and if he had any idea who the female was. The Applicant answered no to both questions.
[47] While the statement was in progress, P.C. Howes received a phone call from P.C. Kotsopoulos at 6:52 a.m. to inform him that the Applicant was arrestable for assault against the female. P.C. Howes came into the room where P.C. Carr was conducting the interview and gave P.C. Carr a hand signal – a cuffing motion across his wrist - that the Applicant was to be arrested. P.C. Carr then spoke to P.C. Howes, and P.C. Howes relayed the information that there were probable grounds to arrest the Applicant for assault. By that point the formal written statement was finished, but it had not yet been signed by the Applicant. P.C. Carr testified that he did not ask any more questions after he was informed that the Applicant was to be arrested for assault, but he closed the interview with a “read-back” to confirm what had been said until that point, and the Applicant signed the statement. P.C. Carr did not inform the Applicant that he was about to be arrested when he conducted the “read back”.
[48] This written statement is the second statement that the Applicant seeks to have excluded.
[49] P.C. Carr placed the Applicant under arrest for assault at 7:00 a.m.
[50] Until they received the phone call from P.C. Kotsopoulos, the police at the residence viewed the Applicant as the victim of the mischief and did not believe that they had reasonable and probable grounds to arrest him.
[51] Once arrested, the Applicant was put into the police cruiser where he was read his rights to counsel and caution, and transported to the police station at 7:12 a.m. The Applicant indicated that he wanted to speak to his lawyer but could not remember his name.
[52] They arrived at the police station at 7:25 a.m. At 7:35 a.m. the Applicant advised that his counsel of choice was Jonathon Lapid. The Applicant’s booking commenced at 7:52 a.m. P.C. Carr telephoned Mr. Lapid at 8:15 a.m., and the Applicant was taken to a private room to speak to Mr. Lapid. The call with Mr. Lapid ended at 8:23 a.m.
[53] Other officers took a statement from the female in relation to the allegations that she had made. During the statement she made additional allegations against the Applicant.
[54] Later, while he was still in custody at approximately 2:10 p.m., the Applicant was also charged with theft of the cell phone and was read his rights to counsel. The Applicant wanted to speak to his lawyer, Mr. Lapid, but when the arresting officer called Mr. Lapid’s office he was transferred to voice mail, and left a message. The police then offered to call duty counsel, and the Applicant agreed. Duty counsel was called at 2:19 p.m., but when the duty counsel called back at 2:42 p.m. the Applicant had already been transferred to the Newmarket Court for his bail hearing as required by s. 503 of the Criminal Code[^1]. The duty counsel was advised that the Applicant was being transferred to the Newmarket Court, but there is no record that the Applicant was able to speak to Duty Counsel on this occasion. The officers testified that they assumed that the Applicant would have access to Duty Counsel when he arrived at the Court House.
[55] The Applicant did not make any statements to the police at this time.
[56] Based on information obtained from the female, the police requested an authorization to hold the Applicant for 24 hours to obtain a search warrant to search the Morningside Road residence. This authorization was granted by a Justice of the Peace at the bail hearing.
[57] The police obtained the warrant at 11:15 p.m. and executed the search warrant on May 23, 2019 at 11:42 p.m. The police seized a number of items containing cocaine residue and the Applicant’s cell phone, which was on the couch in the living room. The police did not locate a firearm or the female’s cell phone.
[58] After further investigation, at 10:00 a.m. on May 24, 2019, the police laid additional charges of obtaining for consideration the sexual services of a person under the age of 18 years and trafficking cocaine. The Applicant was again read his rights to counsel. He asked to and did speak to duty counsel.
[59] At approximately 10:39 a.m. the police conducted an interview with the Applicant at the Newmarket Court House. The Applicant confirmed that he spoke to duty counsel before the interview. The Applicant also told the police officer conducting the interview that until he spoke to Mr. Lapid again, he didn’t want to say too much to the police. This is the Applicant’s May 24, 2019 video interview with the police which the Crown is not seeking to rely on.
[60] The police obtained a second search warrant on June 6, 2019 to search the cell phone belonging to the Applicant that was found at the residence during the first search on May 23, 2019.
Applicant’s Position
[61] The Applicant argues that he became a suspect the moment the police arrived at his property and the female told the police that “Grant Shubert took my phone” and that he was a pedophile. At that point he was detained by the police, who failed to advise him of the reason for his detention or of his right to counsel for nearly two hours while they interrogated him and searched his property.
The Female’s Charter Rights
[62] In addition to his own Charter rights, the Applicant argues that the police violated the rights of the female by not immediately advising her that she was under arrest, by not immediately advising her of her rights to counsel, and by questioning her about the source and circumstances of her injuries before she had a chance to speak to counsel. He argues that the female’s Charter rights are relevant to his position because the police conduct in relation to the female demonstrates a pattern of behaviour by the police that disregards the Charter.
[63] At the outset I reject this argument because of the general principle that to have evidence excluded under the Charter, a person must demonstrate that his own rights under the Charter were violated. See in this regard: R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341, at paras. 19, 20 and 25; R. v. Edwards, [1996] S.C.R. 128, at para. 45: “A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed.”; R. v. Paolitto, [1994] O.J. No. 1220 (C.A.), at para. 25.
[64] While the female’s Charter rights are not properly before me on this Application, I note that, based on the evidence that I have heard in this Application, I cannot fault the police for their conduct in relation to the female. The female was distraught, injured and intoxicated. Her physical safety and well-being had to be addressed as the primary concern in the circumstances presented to the police officers who initially detained her as a suspect to the reported break and enter and obvious mischief. I would not expect the police to read her rights to counsel before they called for an ambulance and gave the female some time to calm down. The police showed appropriate regard for her safety and well-being in these circumstances.
[65] That said, I make no findings or conclusions with regard to the female’s Charter rights because she has not raised them in this matter before me.
[66] There are two concerns in relation to conducting a review of the Charter rights of persons who are not before the Court. One concern is that I have not heard from the female, whose perspective of these events may or may not be the same as the police officers who testified. It would prejudice her rights to make any findings about her Charter rights in an application to which she is not a party, has received no notice that her rights are at issue and has had no opportunity to call evidence or conduct cross-examination.
[67] The second concern in relation to conducting a review of the Charter rights of persons who are not before the Court is that it may present a potentially limitless inquiry, or as the Court of Appeal stated in R. v. Chang, 2003 CanLII 29135 (ON CA), [2003] O.J. No. 1076, at para. 40, quoting the trial judge: “This process could stretch back into infinity”. Police may collect information from numerous sources when conducting an investigation, with one lead leading to another. Requiring the court to examine the Charter rights of every individual who has had some connection to a police investigation – even though they are not a party to the proceeding before the court - may result in endless collateral inquiries.
[68] Accordingly, the female’s Charter rights are not relevant to this Application, and I make no findings in this regard.
Voluntariness
[69] In R. v. Oickle, 2000 SCC 38, the Supreme Court established that, whenever a person in authority questions a suspect, any statement made can only be admitted where the Crown can demonstrate, beyond a reasonable doubt, that it was made voluntarily.
[70] Where the voluntariness of an accused’s statement is at issue, a trial judge must engage in a contextual analysis, with an eye to a number of relevant factors, including: 1) whether there were any threats or promises; 2) whether there were any oppressive circumstances; 3) whether the accused had an operating mind; and 4) whether there were any instances of police trickery: Oickle, at paras. 47-71.
[71] Overall, in undertaking the confessions rule analysis, the trial judge “should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all aspects of the rule”: Oickle, at para. 71.
[72] While the Applicant does not concede the voluntariness of the statements made to P.C. Kotsopoulos and P.C. Carr, there is no doubt that these statements were voluntarily made. Neither officer threatened or coerced the Applicant when he answered their questions, nor did they hold out any inducements in exchange for his answers to their questions or the statement he provided. The circumstances in which the Applicant gave the answers/statement to the police cannot be described as having been oppressive in any manner. Furthermore, it cannot be said that the Applicant’s will was overborne during any of the interviews.
[73] In my view, putting aside Charter s. 10 for the moment, the Crown has proven beyond a reasonable doubt that the statements made by the Applicant were made voluntarily. This does not, however, end the inquiry: R. v. Sinclair, 2010 SCC 35, at para. 29: “[T]he fact that a statement is voluntary does not rule out a breach of s. 10(b)”. I must still assess whether the Applicant’s rights under Charter s. 10 were infringed.
Applicant’s Charter Rights – Charter ss. 9 and 10
[74] Section 9 of the Charter guarantees the right not to be arbitrarily detained.
[75] Section 10(a) of the Charter provides that “[e]veryone has the right on arrest or detention to be informed promptly of the reasons therefor.”
[76] Section 10(b) of the Charter provides that “[e]veryone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.”
[77] The Applicant argues that the police violated his rights under ss. 9 and 10 of the Charter because they detained him when they came to his house to investigate the reported break and enter and did not immediately tell him that he was being investigated for theft and sexual offences against a minor or advise him of his right to retain counsel. Accordingly, any statements made by him to the police during that time should be excluded.
[78] The Applicant argues that the police were suspicious of him almost immediately and began to interrogate him about the female’s allegations from the moment they came to his house. The police investigation of the reported break and enter/mischief, including the deployment of the canine unit, was a ruse to conduct an investigation into the female’s allegations of theft and sex offences with a minor. The female had already confessed to the mischief, and the only purpose for the continued investigation and taking the statement from the Applicant was to conduct the investigation into the female’s allegations. That is why they asked the Applicant if he knew the female and if he had her phone.
[79] The Applicant also argues that the police entered his home without a warrant or invitation and detained and questioned him without telling him why he was being detained or advising him of his rights to counsel. He argues that the police unnecessarily stretched out the interview to obtain information until P.C. Kotsopoulos called P.C. Carr to tell him to arrest the Applicant.
[80] The Applicant argues that the Court should infer from the surrounding circumstances that the Applicant was detained by the police when they first entered his residence just after 5:00 a.m. In these circumstances the Applicant did not feel that he could ask them to leave his home or refuse to answer their questions.
[81] In addition, the Applicant argues that the police conducted three warrantless searches of his home and property. The first warrantless search was the deployment of the canine unit to search the perimeter of the Applicant’s property and the neighbouring properties. The second warrantless search was when P.C. Kotsopoulos tried to find the female’s cell phone in the area in the front of the house and the driveway. The third such search was when the police entered the Applicant’s home to conduct a safety check and looked around the house for 5 to 10 minutes to make sure that no intruder had broken into the house. While no evidence was obtained from these “searches” (and there is therefore no evidence to be excluded under Charter s. 24(2)), the Applicant argues that these are further examples of police disregard for his Charter rights that should be considered when the Court undertakes its s. 24(2) assessment.
Analysis
[82] The first issue to be determined is when the Applicant was detained by the police. The Applicant’s rights under Charter s. 10 do not arise until he has been detained or arrested.
[83] For the reasons set out below, I conclude that the Applicant was not detained when the police came to his house to investigate the reported break and enter or when he made oral statements to the police by answering their questions. The Applicant was, however, detained at the time that P.C. Carr conducted the “read back” of the written statement and asked the Applicant to sign it.
[84] Not every interaction between an individual and the police is a detention: R. v. Ranhotra, 2022 ONCA 548, at para. 30. In R. v. Mann, 2004 SCC 52 (S.C.C.) at para 19, the Supreme Court of Canada stated:
“Detention” has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.
[85] The Supreme Court elaborated on the meaning of detention in R. v. Suberu, 2009 SCC 33, at paras. 24 – 25:
As explained in Grant, the meaning of “detention” can only be determined by adopting a purposive approach that neither overshoots nor impoverishes the protection intended by the Charter right in question. It necessitates striking a balance between society’s interest in effective policing and the detainee’s interest in robust Charter rights. To simply assume that a detention occurs every time a person is delayed from going on his or her way because of the police accosting him or her during the course of an investigation, without considering whether or not the interaction involved a significant deprivation of liberty would overshoot the purpose of the Charter.
For convenience, we repeat the summary set out in Grant, at para. 44:
Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:
(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.
(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
[86] See also: R. v. Joseph, 2020 ONCA 73, at para. 38.
[87] In the present case, the Applicant was not physically restrained prior to his arrest, nor would he have been subject to legal sanction for refusing to answer the officer’s questions or the request that he provide a statement. In these circumstances, “the obvious markers of detention are not present and our analysis must consider whether the officer’s conduct in the context of the encounter as a whole would cause a reasonable person in the same situation to conclude that he or she was not free to go and that he or she had to comply with the officer’s request”: Suberu at para. 26.
[88] The onus is on the Applicant to establish an evidentiary record to support the claim that he was psychologically detained: R. v. Reid, 2019 ONCA 32, at para. 23. The Applicant did not testify at the voir dire, so we do not know his perception, however, because the test is an objective one, this is not fatal to his position: R. v. Grant, 2009 SCC 32, at para. 50. The only evidence of the officers’ conduct, however, comes from the officers themselves.
[89] During the course of an investigation a police officer is entitled to ask questions of persons who may have some knowledge of the matter under investigation without triggering the application of s. 9 or s. 10 of the Charter. In the context of this case, I find the following statements of the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, at paras. 36 and 38 to be applicable:
We may rule out at the outset situations where the police are acting in a non-adversarial role and assisting members of the public in circumstances commonly accepted as lacking the essential character of a detention. In many common situations, reasonable people understand that the police are not constraining individual choices, but rather helping people or gathering information. For instance, the reasonable person would understand that a police officer who attends at a medical emergency on a 911 call is not detaining the individuals he or she encounters. This is so even if the police, in taking control of the situation, effectively interfere with an individual’s freedom of movement. Such deprivations of liberty will not be significant enough to attract Charter scrutiny because they do not attract legal consequences for the concerned individuals.
In the context of investigating an accident or a crime, the police, unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence and, consequently, is at risk of self-incrimination. This does not preclude the police from continuing to question the person in the pursuit of their investigation. Section 9 of the Charter does not require that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Nor does s. 10 require that the police advise everyone at the outset of any encounter that they have no obligation to speak to them and are entitled to legal counsel.
[90] In the present case the police arrived at the Applicant’s home in response to a 911 emergency call made by the Applicant, reporting that someone was trying to break into his house and was breaking windows. The caller told 911 that he was concerned that the person might have come inside his home. When the police arrived, they saw the broken windows in his house and truck, and found the distraught female. The police did not know how many people were involved in the reported break and enter, whether anyone had entered the residence, or whether the Applicant’s home was the only target. The police did not know whether the person who called 911 knew the attacker. The police initially knew only the information reported to them by the Applicant.
[91] The police took the Applicant’s report very seriously, deploying the canine unit to check the neighbouring properties. The Applicant’s suggestion that the canine unit was deployed as part of a ruse to stretch out the police investigation is patently ridiculous.
[92] When the police responded to the 911 call, they had the implicit invitation of the Applicant to come on his property and investigate the reported break and enter. When they came to his door, they had his express invitation to speak to him, enter his home, and conduct the safety check to ensure that no one had broken into the home. There is no evidence that the Applicant did not wish to speak to the police, or asked the police to leave.
[93] Initially, the objective reality known to the police was that the Applicant was the victim of a crime who required their assistance and possible protection. This did not mean that they did not have questions to try to figure out what was going on. One of the first questions asked of any victim is whether they knew or recognized their assailant. It is not surprising that in investigating the reported break and enter/mischief the police would ask the person who called 911 this question. There was nothing inherently intimidating or coercive about the interview process or otherwise indicative of an interrogation: Ranhotra, at para. 38, quoting Boswell J. in R. v. Johnson, 2017 ONSC 711, at para. 77: "... any reasonable person who summons emergency responders will anticipate being asked the obvious question: “what happened?'"..
[94] When the police first saw the female she was intoxicated and hysterical. She was making allegations against someone. The police did not know whether any of these allegations were true. The only thing they knew was that she had done considerable damage to the property and that the person who lives at the property had summoned the police for assistance. The actions of the police were for the purpose of investigating the reported break and enter, to which the Applicant was not a suspect, and to protecting the Applicant from possible intruders, not for the purpose of exercising coercive control over the Applicant: Ranhotra, at para. 37.
[95] P.C. Kotsopoulos and P.C. Carr both testified that they considered the female to be the suspect, that there were reasonable and probable grounds to arrest the female at the scene, and that they were investigating a reported break and enter.
[96] As events unfolded the police were able to piece some information together, and eventually understood that the female was making serious allegations against the person who had made the 911 call, and there was some evidence to corroborate at least one of these allegations. When I view the booking video, I can see the proverbial “penny drop” when P.C. Kotsopoulos finally realizes that there may be something to the female’s allegations. I do not believe for a moment that this was all part of a performance for the camera to buy more time for the police officers who remained at the residence to take the Applicant’s statement.
[97] Each of the police officers who testified indicated that they were skeptical of the Applicant’s claim that he did not know the female or recognize her name. It is fair to say that the police officers who interviewed the Applicant had their suspicions that the Applicant was not being entirely forthright in his answers to their questions. However, as the Supreme Court stated in Grant, at para. 41:
Focussed suspicion, in and of itself, does not turn the encounter into a detention. What matters is how the police, based on that suspicion, interacted with the subject.
[98] See also: Johnson, at para. 74:
For the purposes of the s. 10 analysis, the possibility that Mr. Johnson may have been under suspicion is neither here nor there. Section 10 rights are not triggered by suspicion, but rather by detention: see R. v. Morrison, 2000 CarswellOnt 5811 (S.C.J.) at para. 56.
[99] A reasonable person in these circumstances would understand that the police were present at the invitation of the person who called 911 and that the police were there to conduct an investigation of the reported break and enter and obvious mischief. A reasonable person would understand that the person who called 911 is not being detained when the police come to the scene of the reported crime to investigate and interview him and ask him to provide a statement about the crime that he has just reported. At this stage, a reasonable person would not have concluded he or she was being deprived of the right to choose how to act, and for that reason there was no detention.
[100] Until P.C. Carr received information from P.C. Kotsopoulos that the Applicant was to be arrested, the Applicant was not detained. Any statements made by the Applicant until that time are admissible because there was no detention and therefore no contravention of s. 10 of the Charter.
[101] The written statement made by the Applicant is in a somewhat different position.
[102] Once P.C. Carr was advised that the Applicant was to be arrested, the Applicant was in fact detained, even if the Applicant did not know that his arrest was imminent. From that moment, the Applicant was no longer in a position where he could simply ask the police to leave.
[103] The statement typed by P.C. Carr was virtually complete before P.C. Carr was advised that the Applicant was to be arrested. But, once given that advice, P.C. Carr had the Applicant do a “read-back” to confirm what had been said until that point and asked him to sign the statement. Only then was the Applicant arrested.
[104] In my view this was an error on the part of P.C. Carr. Once he knew that there were reasonable and probable grounds to arrest the Applicant and that the Applicant’s detention was imminent, P.C. Carr should have immediately terminated the interview and advised the Applicant of the reasons for his arrest and of his rights to counsel. Had he done so, the unsigned transcript would have been admissible as a voluntary statement.
[105] One of the components of the Charter s. 10(b) right to counsel is that the police must refrain from eliciting evidence from the detainee until he or she has had a reasonable opportunity to speak to counsel: R. v. Bartle (1994), 1994 CanLII 64 (SCC), 92 C.C.C. (3d) 289 at 301 (S.C.C.). By conducting the read-back and asking the Applicant to sign the statement when he knew that the Applicant was about to be arrested, P.C. Carr infringed this component of Charter s. 10(b). While P.C. Carr did not elicit any additional information, the signed statement is evidence that is qualitatively different than an unsigned transcript, and this signed statement was obtained in violation of Charter s. 10.
Charter s. 8
[106] The Applicant alleges that the police conducted three warrantless searches that violated his Charter rights. He also challenges the searches conducted under the warrants obtained by the police.
[107] The first warrantless search alleged by the Applicant was the search of the adjoining properties and the perimeter of the Applicant’s property by the canine unit. The Applicant did not press this position in oral argument. The Applicant has no privacy interest in the adjoining properties, and little, if any, privacy interest in the perimeter of his own property. The canine unit was called to investigate the Applicant’s report that unknown persons were breaking into his property, and the search conducted by the canine unit was with the implied and express consent of the Applicant, who summoned the police to his property to investigate and protect him from the alleged break and enter in progress. The dog did not search the Applicant’s residence. The dog was deployed to detect fresh human scent, and was not used to investigate any allegations against the Applicant.
[108] The second warrantless search alleged by the Applicant was when P.C. Kotsopoulos tried to find the female’s cell phone in the area in the front of the house and the driveway.
[109] The police also found the female’s jacket and purse. The Applicant does not suggest that this was the result of an illegal search. The jacket and purse were on the front lawn near where the female was apprehended. P.C. Kotsopoulos also searched for the female’s cell phone in that same area. The fact that he looked for the cell phone outside of the house indicates that he was not searching for evidence against the Applicant, he was trying to help a hysterical and intoxicated minor who was about to be taken into custody and needed her cell phone to contact an adult.
[110] The third warrantless search alleged by the Applicant was the “safety check” conducted to ensure that there were no intruders in the home. This search was conducted with the express consent of the Applicant who had called 911 to report a break and enter in progress and was concerned that persons might have entered his house.
[111] The fact that P.C. Carr made a note that there was no cell phone in plain view does not transform the safety check into an illegal search. When conducting a safety check to ensure that no intruders had entered during the reported break and enter, the officers are entitled to take into account any other plain view information that may be relevant to the investigation. P.C. Carr knew that the female had alleged that the Applicant had taken her phone, and it is reasonable that he would make a note that there was nothing in plain view to corroborate that allegation. The making of that note does not support the argument that the safety check was only a ruse to conduct an investigation into the female’s allegations. This conclusion would not change even if P.C. Carr had seen the missing cell phone during his safety check: R. v. Mulligan, 2000 CanLII 5625 (ON CA), at para. 34:
It is trite law that the legality of police investigative conduct is not determined by what they do or do not find. If the police officer was entitled to enter the property for the stated purpose, the legality of his conduct is not defeated solely because it produced the unexpected result of apprehending the owner for an offence not suspected by the officer when he entered.
[112] The Applicant’s explicit and implicit invitation to the police to enter his property and search for intruders was never revoked.
[113] I am satisfied from the evidence that both P.C. Mulick of the Canine Unit and P.C. Carr conducted their respective searches for the purpose of determining whether there were any intruders in or around the Applicant’s property and to protect the Applicant from possible criminal activity as he requested in his call to 911, and not for the purpose of investigating any allegations against the Applicant. As the Ontario Court of Appeal stated in Mulligan, at para. 33:
It follows from what I have already said about the implied licence that, given his purpose, the police officer did not invade the appellant's reasonable expectation of privacy and that s.8 is therefore not engaged. The purpose of the officer was the very antithesis of invading the rights of the appellant. The officer’s purpose was to protect those rights from what the officer suspected might be criminal activity. From the perspective of the owner or occupant of private property, it is entirely reasonable to expect a police officer to investigate activity giving rise to a suspicion of criminal activity being perpetrated against the owner or occupant on his or her property.
[114] I am also satisfied that P.C. Kotsopoulos searched for the female’s cell phone in the area of the front lawn to assist the female in recovering important personal property, and not for the purpose of investigating any allegation against the Applicant: Mulligan, at para. 31.
[115] In my view, none of these alleged warrantless searches invaded the Applicant’s reasonable expectation of privacy and there was no violation of the Applicant’s rights under Charter s. 8.
[116] Moreover, no evidence was obtained from any of these “searches”, nor did these searches have any “causal, temporal or contextual connection” with any other evidence found (R. v. Pino, 2016 ONCA 389, at para.72) and there is therefore nothing to be excluded under s. 24(2).
[117] The Applicant also challenges the validity of the search warrant on the basis that the police failed to provide “full, frank and fair” disclosure of the material facts in the Information to Obtain (ITO). He argues that the police should have indicated on the ITO that they had completed “multiple warrantless searches” of the property and had not located anything to corroborate the female’s allegations, and that the property manager had attended the property at 10:00 a.m. after the police left the property.
[118] The ITO provided a detailed summary of the events of May 23, 2019, describing how the police were called to the property in response to a break and enter in progress and observed broken windows and other damage at the residence. The ITO described the arrest of the female at the property and the police interviews with the Applicant, including his denial that he knew the female who had been arrested. The ITO explained that after her arrest the female provided more information about the alleged assault by the Applicant, the provision of sexual services to the Applicant for consideration, the theft of her cell phone, and the allegation that he trafficked cocaine. The ITO also summarizes a sworn video statement given by the female detailing allegations against the Applicant dating back to when she first met him in September 2017.
[119] The ITO does, in fact, specifically state, at para. 22, that the property manager attended the residence at 10:00 a.m. on May 23, 2019 to secure the windows with tape and observe the damage to the property.
[120] In R. v. Shivrattan, 2017 ONCA 23, the Ontario Court of Appeal summarized the law relating to challenges to the validity of a search warrant at paras. 23-27 (citations omitted):
At trial, the defence may challenge the constitutionality of a search conducted under the authority of a search warrant by demonstrating that the contents of the ITO relied on to obtain the warrant could not justify its issuance. If the challenge is successful, the search is treated as warrantless, rendering it unreasonable and contrary to s. 8 of the Charter. The defence must then demonstrate that the fruits of the search should be excluded under s. 24(2) of the Charter…
On a challenge to the validity of the warrant, the reviewing judge does not make a de novo assessment of the ITO’s contents. Rather, he or she decides whether those contents provide a basis upon which the issuing justice, acting judicially, could find reasonable and probable grounds to believe that an offence has been committed and that evidence of the offence would be found at the specified place…
Challenges to the validity of a warrant are described as facial or sub-facial. On a facial challenge, counsel argues that the ITO, on its face, does not provide a basis upon which the issuing justice, acting judicially, could issue the warrant. A sub-facial validity challenge involves placing material before the reviewing judge that was not before the issuing justice. On a sub-facial challenge, counsel argues that the material placed before the reviewing judge should result in the excision of parts of the ITO that are shown to be misleading or inaccurate. The warrant’s validity must then be determined by reference to what remains in the ITO. On a sub-facial challenge, counsel may also argue that the augmented record placed before the reviewing judge demonstrates that the affiant deliberately, or at least recklessly, misled the issuing judge, rendering the entire ITO unreliable as a basis upon which to issue a warrant…
The reviewing judge, when determining whether the warrant should have been granted, must consider the totality of the circumstances as set out in the ITO and as amplified by any additional material placed before him or her.
[121] In R. v. Booth, 2019 ONCA 970, the Ontario Court of Appeal summarized the process to be undertaken by the reviewing court where “erroneous, incomplete, or dishonest information” has been included in the drafting of the ITO, at paras. 54 and 57-60 (citations omitted):
Obviously, it is imperative that issuing judges or justices have an accurate understanding of the material, known facts available to the affiant officer. If the ITO contains erroneous, incomplete, or dishonest information relating to known information, an issuing judge or justice could be misled, and provide an authorization that should not have been provided. To ensure accuracy, anyone seeking an ex parte authorization, such as a search warrant, is required to make full and frank disclosure of material facts… This is because an ex parte warrant application is not adversarial. As a corollary of the privilege of being the only party permitted to present evidence in an ex parte application, a search warrant affiant bears the burden of presenting the facts accurately and fairly, from the perspectives of both sides.
Where full and frank disclosure has not been made, a reviewing court will correct the warrant ITO to achieve full and frank disclosure, and then determine based on that corrected ITO whether the warrant could properly have issued if full and frank disclosure had been made. “What is involved is an analysis [of the corrected ITO] to determine whether there remains sufficient reliable information upon which the search authority could be grounded”...
… When material information that would hinder a finding of reasonable and probable grounds has been improperly omitted, the ITO must be amplified to include it. …
[122] In my view, the ITO, on its face, does provide a basis upon which the issuing justice, acting judicially, could issue the warrant. Moreover, I am satisfied that the ITO is a full and frank disclosure of all the material facts. The information that the Applicant complains is not included, such as the previous canine unit search of the perimeter of his property and the brief “safety check” of his residence where no cell phone was seen in plain view, are not material omissions and, even if included in the ITO, would have had no impact on the decision of the judicial officer to grant the warrant.
Charter s. 24(2)
[123] The only Charter violation found in this case was P.C. Carr’s brief delay in advising the Applicant of the reason for his detention and of his rights to counsel when P.C. Carr knew that the Applicant was about to be arrested for assault. During this brief delay, P.C. Carr asked the Applicant to “read back” his typed statement, confirm its content, and sign the statement. As indicated above, this was a violation of the Applicant’s rights under Charter ss. 10(a) and (b), and the evidence obtained – the signed statement – was obtained in a manner that infringed the Applicant’s rights.
[124] This violation triggers a Charter s. 24(2) analysis, and the issue is whether the signed statement should be excluded as evidence at the trial.
[125] The Crown indicates that if the Court finds that the Applicant ought to have been advised of his rights to counsel before he was arrested, the Crown will make no submissions in relation to the exclusion of the signed statement.
[126] I accept this concession by the Crown.
[127] There are three lines of inquiry in deciding whether the signed statement should be excluded under s. 24(2) of the Charter. These are: 1) the seriousness of the Charter-infringing state conduct, 2) the impact of the breach on the Charter-protected interests of the accused, and 3) society’s interest in the adjudication of the case on its merits: R. v. Grant, 2009 SCC 32.
[128] In R. v. McGuffie, 2016 ONCA 365, at paras. 62-63, the Court of Appeal summarized the post-Grant paradigm as follows:
The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society’s interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case.
In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. [Citations omitted].
[129] In my view, the s. 24(2) analysis in this case can be resolved by reference to the third Grant factor. The exclusion of the signed statement will not interfere with the adjudication of the case on its merits. The signed statement does not provide any evidence of the alleged offences, it will only become relevant if the Applicant chooses to testify and the Crown seeks to use the statement to impeach his credibility. In these circumstances, the Crown should not be permitted to rely on evidence that was obtained in violation of the Applicant’s s. 10(b) right to counsel. The third Grant factor cannot tip the balance in favour of admission regardless of the weight given to the first two factors.
Conclusion
[130] For the foregoing reasons, the Application is granted to the extent that the Applicant’s signed statement is ruled as inadmissible. This decision applies only to the signed statement obtained by P.C. Carr immediately prior the Applicant’s arrest. It does not apply to any of the oral statements made by the Applicant to P.C. Kotsopoulos or P.C. Carr prior to the preparation of the typed statement and does not apply to any of the evidence found pursuant to the search warrants.
Justice R.E. Charney
Released: September 16, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
GRANT SHUBERT
Defendant/Applicant
RULING RE:
CHARTER SECTIONS 8, 9, 10 AND 24(2)
Justice R.E. Charney
Released: September 16, 2022
[^1]: Section 503 of the Criminal Code requires that a person arrested be brought before a justice within a period of 24 hours.