Court File and Parties
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Keima Davis-Baynes, Applicant
Counsel:
Brian D. White, for the Crown
W. Glen Orr, for the Applicant
HEARD: February 6, 7, 8, 9, 10, March 28, 29 and 30, 2023
CROWN APPLICATION – Seeking a finding that the Applicant’s statements are voluntary
DEFENCE APPLICATION – Alleging a Breach of s. 7, 8, 9, 10(a), 10(b) and 11(d) Charter Rights
LEITCH J.
Reasons for Decision
1Pursuant to the Order of Regional Senior Justice Thomas dated January 24, 2023, I was appointed as the Case Management Judge in this proceeding, pursuant to s. 551.1 of the Criminal Code, R.S.C. 1985, c. C-46.
2The Applicant is charged as follows:
KEIMA DAVIS-BAYNES STANDS CHARGED;
that she on or about the 27th day of August in the year 2018 in the City of Windsor in the Southwest Region, knowing that a person or persons at the City of Windsor in the said region had committed murder, did provide assistance to that person or those persons for the purpose of helping that person or those persons to escape and was thereby an accessory after the fact to murder, contrary to Section 240 of the Criminal Code.
AND FURTHER THAT she, on or about the 27th day of August in the year 2018 in the City of Windsor in the Southwest Region, knowing that a person or persons at the City of Windsor in the said region had committed aggravated assault, did provide assistance to that person or those persons for the purpose of helping that person or those persons to escape and was thereby an accessory after the fact to aggravated assault contrary to Section 23 of the Criminal Code.
3The Crown applies for an Order finding that five statements given by the Applicant to the Police are voluntary. The Crown seeks to use the first four statements on cross-examination if the Applicant testifies at trial. The Crown seeks to admit the fifth statement into evidence at trial.
4The Applicant seeks an order pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11, s. 91(24) (the “Charter”), to exclude evidence on the basis that the Applicant’s ss. 7, 8, 9, 10(a), 10(b) and 11(d) Charter rights were violated. However, no argument was made in relation to s. 11(d).
5Numerous officers of the Windsor Police Service (the “Windsor Police”) and Peel Regional Police Service (the “Peel Police”) testified on the voir dire. In addition, it was agreed that evidence from the preliminary hearing was part of the evidentiary record on the voir dire.
6Both applications were heard together in a blended voir dire.
7Counsel for the Applicant confirmed that the alleged s. 8 breach was focused on the alleged lack of reasonable and probable grounds for (i) the arrest of the Applicant on August 27, 2018 and the resulting seizure of a firearm and an iPhone in a pink case; and (ii) the arrest of the Applicant on June 4, 2019 and the seizure of another iPhone.
Background as described in the Applicant’s Notice of Charter Application
8The Applicant set out the following in paragraphs 1 to 10 of her Notice of Charter Application as grounds for her application:
On the 27th day of August, 2018, in the City of Windsor, in the Province of Ontario, two men killed Jason Pantlitz-Solomon and then escaped in an automobile and allegedly drove to the Greater Toronto area.
It is alleged by the police and crown counsel in the matter that the Applicant was sitting in the front passenger seat of the vehicle in question when the homicide took place and when a female with Mr. Jason Pantlitz-Solomon was also shot.
It is further alleged that the Applicant travelled to the Greater Toronto Area with the two men who were allegedly involved in the shootings.
It is further alleged that the Applicant had a cell phone with her on the foresaid day in question.
It is further alleged that the Applicant on the way to the G.T.A. used that cell phone to assist the driver of the automobile to find the route to the G.T.A.
It is further alleged that while the Applicant was on the way to the G.T.A. she repeatedly used the cell phone to ascertain what was happening in Windsor with respect to the investigation of the shootings.
On the aforesaid Monday the 27th day of August, 2018, Peel Regional Police were attempting to locate a white Nissan Altima which matched the description of the automobile that the Applicant was allegedly in when the aforesaid shooting took place.
The Peel officers were investigating an earlier shooting in the Region of Peel.
The Peel police officers found the white Nissan with the Applicant in it in the city of Mississauga.
The driver of the Nissan escaped from the Nissan and ran away but the Applicant remained in the right front seat of the Nissan.
The Applicant’s Arrest on firearm charges on August 27, 2018
9Officer Brandon Poffley of Peel Police testified that on August 25, 2018 he was briefed regarding a shooting in Mississauga and a vehicle used by the shooters who fled the scene. A citizen took a photo of the licence plate (CEJH659). A Ministry of Transportation search indicated that the license plate was attached to a 2017 white Nissan Ultima (the “Nissan”). This was consistent with the description provided by the civilian witness and the video available from the August 25, 2018 shooting in Peel. The Crown tendered into evidence, on consent, screen captures of the video of the August 25 shooting (Exhibit 9).
10The Nissan was located by police officers and observed in Mississauga on August 26. However, the officers later lost sight of the Nissan.
11Officer Poffley was again on duty August 27, 2018. By this time, he had information that the Nissan had possibly been in Windsor the night before and involved in a shooting there. He testified that the objectives of the Peel Police were to locate and seize the Nissan and to arrest anyone found inside the vehicle. As he explained, it had been only two days since the shooting and any individual within the Nissan, at a bare minimum, should be detained and investigated for the shooting in Peel. Thereafter, Peel Police would apply for a warrant to search the Nissan which he described as a crime vehicle.
12Officer Poffley acknowledged on cross-examination that he had no idea if the same people were in the vehicle August 25 and 27.
13It was acknowledged by the Crown on the voir dire that the civilian witness could not identify suspects in the Nissan on August 25 and the officers did not investigate the reliability of the civilian witness who provided the description of the Nissan and a picture of the licence plate.
14While engaged in surveillance on August 27, in the area where the Nissan had been seen on August 26, Officer Poffley observed what he believed was the Nissan. He had another officer confirm the licence plate. Having verified that the vehicle he was observing was the Nissan, he then asked for the tactical unit to be called in to assist.
15Officer Witts and Officer Farrow of the Peel Police were part of the tactical unit. They were briefed August 27, 2018, at 21:35 and asked to assist in a potential high-risk vehicle stop of the Nissan under surveillance.
16The officers were advised that the Nissan had been involved in a shooting in Mississauga on August 25 and a homicide in Windsor, and now was under surveillance at a specific address.
17Officer Farrow had been on duty the evening of August 26 and was made aware of the need for assistance in relation to the Nissan that evening. He was told where the Nissan had been last seen that evening and that, at that time, two males were inside.
18The officers had no details with respect to the occupants of the Nissan on August 27 nor were they provided with any information with respect to the suspects.
19The officers were advised that the parties associated with the Nissan were arrestable for both offences. They were also advised that these parties were armed and dangerous.
20The Nissan was to remain under surveillance until the stop could be done safely.
21The officers attended at a rendezvous point and three vehicles were lined up.
22Officers Witts and Farrow were in the primary vehicle, second in line, and were to block the rear bumper of the Nissan when it was located.
23The investigator responsible for watching the Nissan called out that it was moving through an apartment complex into a visitor’s parking area where it “nosed in” to a parking spot.
24The officers were directed to move in and initiate a vehicle stop.
25The first vehicle missed the entrance and the truck driven by Officer Witt with Officer Farrow as passenger became the lead vehicle. They described that as they were initiating the stop, they activated their lights. The driver’s side door of the Nissan was partially open, and a man was standing between the door and the car either getting in or getting out of the car. The man observed the police and ran from the car. Officer Farrow had only a split-second look at that man.
26Officer Poffley had seen the Nissan pull into the visitor’s parking space and a male exiting the driver’s side for a brief time and then returning to the Nissan. He saw the tactical team arrive with their vehicle lights pointed directly at the Nissan. He next saw the male exit the vehicle in a hurry and sprint away. Officer Poffley left his position and ran down the main roadway parallel to the pathway the male had run down.
27In immobilizing the parked Nissan, the police truck swiped the vehicle in the tight space it was parked in. The Nissan was contacted from two points.
28Officer Farrow exited their truck with his assault rifle “at the ready”. He was focussed on the Nissan and swept around the front of the vehicle from the passenger side to the driver’s side. He testified that the driver’s side door was open. He was “100% sure” of that. He described having a clear view into the Nissan. He could see a female in the passenger seat (who he identified as the Applicant, seated in the public area of the court room), and otherwise the Nissan “was clear”. There is no issue that the Applicant was inside the Nissan in the front passenger seat.
29Officer Farrow yelled a command to the Applicant to get her hands up and she complied. Once he was sure the Applicant did not have a weapon, Officer Farrow switched from using his rifle to his taser. He described the Applicant as “stunned and shocked”.
30Officer Farrow testified that he saw a black handgun sitting in the front well of the driver’s side of the Nissan. Officer Farrow confirmed that he found the gun in the area where he drew a red circle on a photograph presented to him at the preliminary hearing. The photograph with the red circle was shown to the Applicant on her cross-examination on the voir dire as described below.
31On cross-examination, Officer Farrow confirmed he was positive that was where the gun was located. He was “absolutely sure” it was not under the front driver’s seat.
32Once Officer Witt, who was driving the police truck, had positioned his truck, he could see inside the Nissan and observed a female in the front passenger seat. He leaned out his open window with his rifle and told her not to move and to keep her hands up.
33After Officer Farrow “took control of her visually”, Officer Witt moved his vehicle and commanded her out of the Nissan.
34Officer Farrow secured her in handcuffs. He then arrested the Applicant for homicide and unauthorized possession of a firearm.
35Officer Witt took custody of the Applicant and Officer Farrow joined the search for the driver who had fled. He was not found.
36Officer Witt described the Applicant as visibly shaken and asked her if she needed medical attention, which she declined. Officer Witt then transferred the Applicant to a uniformed officer.
37Officer Peter Grant noted that at 10:40 p.m. on August 27, he took over custody of a female from tactical officers. It was a “dynamic situation” and the tactical officers seemed “occupied”.
38The female provided her name as “Kayla Davis”. Officer Grant testified that at 10:40 p.m. he advised the Applicant she could call her lawyer, or she could seek the help of duty counsel. Thereafter, he gave her a primary caution. Officer Grant described the Applicant as confused and he explained to her that all parties in a vehicle where a firearm is found are charged with the same offence.
39Officer Grant remained with the Applicant in the cruiser from 10:40 to 11:05. The Applicant was not questioned.
40At 11:05 Officer Grant read the Applicant her rights to counsel and cautioned her reading verbatim from his duty book. In giving her rights to counsel and cautioning her, he confirmed she was arrested for possession of a firearm. In response to the question of whether she wished to call a lawyer, the Applicant indicated, “I will take duty counsel”.
41On cross-examination, it was suggested to Officer Grant that 25 minutes passed before the Applicant was given rights to counsel in a meaningful way. In response, Officer Grant indicated that a conversation held with the Applicant at 10:40 was also meaningful.
42On cross-examination it was also put to Officer Grant that he never gave the Applicant rights to counsel or cautioned her. Officer Grant was adamant that he had done so; he reiterated that the rights to counsel were given at 10:40 and then again at 11:05.
43At 11:08 p.m. Officer Grant transported the Applicant to Peel Police 12 Division and arrived there at 11:22 p.m.
44He left a message for duty counsel at 11:48 p.m. When duty counsel called back, it was to indicate that duty counsel could not assist at that time. Officer Grant called duty counsel back at 12:28 a.m. He advised that the Applicant was available for a call.
45By 12:28 a.m. the Applicant had been turned over to the booking officers and Officer Grant returned to his duties at 11 Division.
46Officer Poffley testified that he understood that a gun was found in the Nissan and the Applicant was arrested for unauthorized possession of a firearm.
47The Nissan and the firearm were seized. Officer Poffley delegated an officer to apply for a warrant to search the Nissan. A search warrant was authorized August 29, 2018. Subsequently, the Nissan was searched and an iPhone in a pink case was located on the floor of the front passenger side of the Nissan (the “cellphone”).
48I note that a search warrant was sought by Peel Police to conduct a digital analysis of the cellphone. A search warrant was authorized on September 5, 2018. On April 30, 2019 the Windsor Police obtained a production order to seize the cellular data records resulting from digital analysis of the cellphone by the Peel Police.
49Officer Poffley asked Officer Marzilano to interview the Applicant, which is described below.
The Applicant’s Charter application respecting the firearm and her cellphone seized August 27, 2018
50The Applicant relies on s. 8 of the Charter which provides that everyone has the right to be secure against unreasonable search or seizure, as well as s. 9 which provides that everyone has the right not to be arbitrarily detained or imprisoned.
51As the Applicant set out in her Notice of Charter Application, the police entered the Nissan without a search warrant or an arrest warrant.
52The Applicant’s position is that her arrest and detention were a clear violation of her s. 9 Charter rights as there were no reasonable and probable grounds to arrest and detain her.
53The Applicant also asserted in her Notice of Charter Application that the firearm was not in plain view but in fact was located under the left front seat of the Nissan where it could not be seen, and the police unlawfully searched the Nissan.
54She also asserted that a cell phone, which belonged to the Applicant, was found by the police in the Applicant’s purse on the floor of the Nissan in front of the right front passenger seat.
55The Applicant’s position was that these searches were a clear violation of the Applicant’s ss. 8 and 9 Charter rights and that the firearm, her cellphone, and the contents thereof obtained in violation of those rights should be excluded from evidence pursuant to the combined operation of ss. 8, 9 and 24(2) of the Charter.
56During the Applicant’s testimony on the voir dire, she indicated that she was picked up in the Nissan by an individual known as “Blanco”, whom she had wrongly indicated was known as “George” up until her July 10, 2019 statement. She described that the Nissan was ultimately parked in a visitor’s parking spot, and when Blanco got ready to drive out, he saw a number of cars approaching and the next thing the Applicant knew, she “was the only one in the car”. The Applicant claims she did not know there was a gun in the Nissan. She described the police opening the driver’s car door, pushing back the seat, and calling out that there was a gun.
57The Applicant also indicated that she was “hyperventilating”, “trembling”, and “shaking” when confronted by the police. She was at first detained in the Nissan and then was placed in the back of a cruiser and was left sitting on the driver’s side for 20-25 minutes. No one spoke to her. She had not been told what she was charged with, and she was not given any rights to counsel.
58Following this, a tactical team officer came to the passenger side of the cruiser and told her she was charged with “a firearm fully loaded, one in the chamber” and again she was not given rights to counsel. She described the tactical officer telling the uniformed officer in the police cruiser that she could be taken to 12 division. The Applicant went on to say that while they were going down the ramp into the 12 division, the police officer asked her name and she responded “Kayla”. Forty minutes after arrival at the 12 division when she was booked in, she was told she could either talk to duty counsel or a lawyer of her choice. She briefly spoke to her Thunder Bay lawyer and then spoke to duty counsel.
59The Applicant’s counsel argued that the police on August 27 were searching for the Nissan suspecting that this vehicle was used in a crime committed August 25, but they knew very little about the Nissan and nothing about the occupants of the Nissan on August 25. He asserted that the police did not have reasonable and probable grounds to seize the car and arrest everyone in it. He suggested that only if the police had checked the reliability of the witness to the August 25 shooting and had information regarding the people in the vehicle would they have reasonable and probable grounds to arrest.
60Counsel for the Applicant submitted that there was a clear violation of the Applicant’s s. 9 rights when the Nissan was blocked in, the Applicant’s detention was arbitrary, and the seizure of her phone was pursuant to a violation of her s. 9 rights and thus a violation of her s. 8 rights.
61The Applicant’s counsel also asserted during his argument that the Applicant’s s. 10 rights were violated on August 27, 2018. Section 10 of the Charter provides that everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefore and (b) to retain and instruct counsel without delay and to be informed of that right. He contended that the Applicant had not been told about her rights to counsel on August 27, 2018. He noted that s. 10 violations are relevant to consideration of the Grant factors.
62The Applicant’s position was that the police were reckless in their consideration of the Charter and a consideration of the Grant factors supports the exclusion of the firearm and the cellphone from evidence.
63In relation to the s. 9 issue, I agree with and accept the Crown’s submission that the information in the hands of the Peel Police justified the brief investigative detention when the Nissan was blocked in. Such a detention was referenced in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 55, where the Court noted that in its earlier decision in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, the Court confirmed that “a brief investigative detention based on “reasonable suspicion” was lawful”.
64There is no question that Officer Farrow and the other Peel Police officers involved in what they described as “a high risk takedown”, honestly believed when they blocked in the Nissan that it was a “crime vehicle” and the occupants had committed an offence. I am satisfied there was “reasonable suspicion” justifying the take down of the Nissan, and the brief detention of the Applicant, who was ordered to remain in the Nissan with her hands up under “control” of the police.
65I make this finding in consideration of the following: the video evidence from the August 25 shooting; the photograph of the license plate of the suspect vehicle; the fact that the information from the Ministry of Transportation on the license check was consistent with what was seen in the video; the police witness descriptions and that they had verified that the vehicle under surveillance had the license plate of the vehicle they were searching for.
66Here, the officers had the requisite reasonable suspicion to detain the Applicant within the Nissan on the take down and there was no breach of the Applicant’s rights under s. 9 by Peel Police who made no effort to obtain incriminating information from the Applicant.
67With respect to the discovery of the firearm in the Nissan, I am satisfied that it was observed by Officer Farrow through the open driver’s side door of the Nissan lying on the floor as Officer Farrow described. It is inconceivable that during this high-risk takedown that Officer Farrow would lean in and physically move back the seat of the car as the Applicant suggested. Furthermore, the accuracy and reliability of her evidence on this issue was significantly undermined on her cross-examination on the voir dire as follows:
Q. So the – he [Officer Farrow] has this big gun with a flashlight, pointed at you and your evidence is he puts down the big gun and then presses the button or in some way adjusts the seat back?
A. Yes. He – he open – he slings open the door, he puts his upper body in the car, pushes back the seat, and said, gun, gun, there’s a gun. They found out there was a gun in the car before they even took me out the car.
Q. But you never saw a gun, right?
A. No. Up to this day I still never seen a gun.
Q. Right. So you don’t know if the gun was under the seat or where the officer pointed because you never saw the gun?
A. No, I never saw the gun. But I could recall him pushing back the seat and saying, gun, gun, there’s a gun.
Q. Right.
A. So from what I interpret from that, that’s where he got the gun.
Q. But….
A. Because he didn’t say there was a gun until he did that.
Q. Right. But it’s just as likely that the officer is correct in that where we see this red circle on what is Tab Number 9, is that’s where he saw the gun?
A. Could be.
68After being briefly detained, the Applicant was arrested for unauthorized possession of a firearm. The law requires that an arresting officer subjectively have reasonable and probable grounds for the arrest and these grounds must be justifiable from an objective viewpoint: see R. v. Beaver, 2022 SCC 54, at para. 71 where the Supreme Court of Canada set out the legal principles governing a warrantless arrest. I am satisfied that when Officer Farrow observed the firearm on the floor of the Nissan, he had reasonable and probable grounds to arrest the Applicant – the Nissan’s sole occupant – with unlawful possession of a firearm.
69Further, when Officer Grant was informed of the discovery of the firearm, he had the requisite grounds to inform the Applicant of her arrest, provide her with her right to counsel, and caution her.
70I am satisfied that there was no breach of the Applicant’s s. 10 rights. I accept Officer Grant’s evidence regarding his statements to the Applicant at 10:40 and 11:05 on August 27, 2018. Furthermore, no one questioned the Applicant until after she had twice spoken with duty counsel.
71I am satisfied that the Peel Police lawfully seized the Nissan, and they lawfully seized the firearm. The Peel Police obtained a search warrant to authorize their search of the Nissan and then their later search of the cellphone. There were no breaches of s. 8.
72I find that there was no evidence obtained in a manner that infringed or denied a Charter right or freedom. This is the “threshold requirement” to any consideration of s. 24(2) of the Charter, which “insists that there be a nexus between the Charter breach and the evidence, absent which s. 24 (2) has no application”: see Beaver, at paras. 94, 96.
The Applicant’s arrest August 28, 2018 for obstructing a police officer and firearms offences
73Constable Marzilano was tasked with interviewing the Applicant while she was in custody for unauthorized possession of a firearm in the early morning hours of August 28, 2018. Constable Marzilano had been advised that the Applicant had spoken with duty counsel before their meeting. The Applicant confirmed that conversation during her testimony on the voir dire.
74Constable Marzilano informed the Applicant that the room they were in was audio and video recorded.
75According to Constable Marzilano, the Applicant represented herself as Kayla Davis. Constable Marzilano arrested the Applicant for obstructing a police officer in providing an incorrect name, and also arrested her for several other firearms offences, based on instructions from the officer in charge. She informed the Applicant of her right to counsel and gave her the primary and secondary cautions in relation to these new charges. The Applicant indicated she wished to speak to Duty Counsel again.
76Constable Marzilano initiated the process for the Applicant to speak to Duty Counsel and the Applicant had a conversation with Duty Counsel about the new charges she was arrested on. After the Applicant spoke again with Duty Counsel, Constable Marzilano continued her interview of the Applicant, which is discussed below.
77During her testimony on the voir dire, the Applicant acknowledged she had given her name as “Kayla” but denied indicating her surname was “Davis” or that she had provided the wrong birthdate.
78As she acknowledged on the voir dire, she had repeatedly indicated her name was “Kayla” throughout her interaction with the Peel Police on August 27. On December 27, 2018 the Applicant pled guilty to 1 count of obstructing a police officer and acknowledged she did not provide her real name on her arrest on August 27, 2018 (Exhibit 10 is the Applicant’s record). All other charges from Peel were withdrawn.
The Applicant’s arrest June 4, 2019 for breach of her conditions of recognizance and seizure of “the breach phone”
79Officer Donohue of the Peel Police was on duty June 4, 2019 patrolling traffic in a marked police cruiser. He testified that he observed a grey Pontiac four-door sedan turn right onto westbound Burnhamthorpe Road where multiple signs indicated right turns were prohibited, and the right lane was marked off with pylons.
80Officer Donohue activated his lights and conducted a traffic stop, pulling over the grey Pontiac sedan. He told the driver the reason for the stop and asked for her driver’s licence, insurance, and proof of ownership. There is no issue that the driver was the Applicant. After checking the driver’s information, he discovered she was bound by a recognizance in Thunder Bay in relation to drug offences. One of the terms of her recognizance was that she consented to a search of her person outside of her residence or a vehicle that she was in control of.
81As a result, Officer Donohue searched the Pontiac Sedan and located an iPhone under the floor mat of the driver’s front seat which he found “odd and out of place”. He wrote up a ticket for disobeying signage and driving unaccompanied with only a G1 licence.
82Officer Donohue then noticed there was another condition of her recognizance that prohibited her from owning or possessing a cell phone.
83As a result, he arrested the Applicant for breach of recognizance, read her rights to counsel, and gave her the primary and secondary cautions. She indicated she understood and wanted to call a lawyer, specifying the name of a Brampton lawyer.
84Officer Donohue transported the Applicant to cells and placed the seized cell phone in a property bag (the “breach phone”). The Applicant arrived at 12th Division at 2:27 p.m. Her Thunder Bay lawyer was called at 2:37 p.m. and the Applicant spoke with him at 2:46 p.m. At the Applicant’s request, her Brampton lawyer was called at 2:49 p.m. and a voicemail message was left for him at 2:50 p.m. According to Officer Donohue, the Applicant indicated thereafter that she was satisfied with her call with her Thunder Bay lawyer and did not request an additional call with duty counsel.
85During her testimony on the voir dire, the Applicant asserted that there were no signs or other indications that right turns were prohibited. She permitted Officer Donohue to search her vehicle because she “didn’t have any reason not to”. She stated that the phone in the car was not her phone; it was her boyfriend’s. It was in the glove compartment, and she was using it for GPS even though she knew she was subject to court ordered conditions not to have a phone.
86She testified that she was aware why she was arrested, she was cautioned, and advised of her rights to counsel after her arrest for breach of recognizance.
87The Applicant indicated that she was going to be released on this charge, but that release did not occur because she was arrested by the Windsor police in relation to the Windsor shootings on June 5, 2019 as I will describe below.
The Applicant’s Charter Application respecting the breach phone
88The cellphone seized on June 4, 2019 was referred to as the “breach phone”.
89In her Notice of Charter Application, the Applicant outlined her position that she had not committed a Highway Traffic Act offence, the reasoning for her being stopped was a “contrived” Highway Traffic Act violation, and she was wrongfully detained in violation of her s. 9 Charter rights, as there were no reasonable and probable grounds to stop her vehicle and arrest and detain her.
90The Applicant further submitted in her Notice of Charter Application that the search of her vehicle, and the discovery of the breach phone violated the Applicant’s s. 8 Charter rights, and that the breach phone and its contents should be excluded from evidence pursuant to the combined operation of ss. 8, 9, and 24(2) of the Charter.
91In addition, the Applicant submitted that when she was detained and the breach phone was seized, her s. 10 Charter rights were violated in that she was not informed promptly of the real reason for her arrest and detention. Further, the Applicant claims she was not informed, without delay, of her right to counsel and was not given an opportunity without delay to consult with counsel.
92However, as described above, the Applicant testified on the voir dire that she had been informed of the reason for her arrest, cautioned, and given her rights to counsel by Officer Donohue. She also acknowledged that she was subject to conditions of release that prohibited her from having a cell phone and permitted a search of a vehicle that she controlled.
93At the conclusion of the voir dire, the Applicant’s counsel advised that on reflection the Applicant was not alleging any Charter breaches in relation to the breach phone and the Applicant was not seeking to exclude the contents of the breach phone from evidence.
The Applicant’s arrest on June 5, 2019 for murder and attempted murder in relation to the Windsor shootings
94Mr. Westenberg, now retired, who was the lead investigator in the August 27, 2018 shootings testified that the Windsor Police acquired information from the Peel Police that the handgun found in the Nissan was associated with the homicide in Windsor. In addition, the data analysis from the cellphone seized by the Peel Police led the Windsor Police to believe the Applicant had been in Windsor at the time of the Windsor shootings and “was involved”. There was also a witness statement regarding a black-haired female occupant in the vehicle at the time of the Windsor shootings.
95Mr. Westenberg testified that the culmination of all these factors led to the issuance of a warrant for the Applicant’s arrest on the murder and attempted murder in Windsor on June 3, 2019. He travelled to Peel with Windsor police officer Michael Patterson on June 5, 2019.
96Officer Patterson described arriving in Peel at 12:25 p.m. on June 5. He was introduced to the Applicant in her cell. He advised her of the existence of the June 3, 2019 arrest warrant. He placed her under arrest on one count of murder and a second count of attempted murder. He provided her with her rights to counsel and cautioned her.
97The Applicant indicated she understood, she did not want to say anything, and she wanted to speak to her lawyer.
98The Applicant made two utterances which he noted in his duty book (“I never attempted to kill anyone” and “I’ve never been to Windsor”).
99Officer Patterson was aware the Applicant had the opportunity to speak with her lawyer in person in the Peel Region courthouse sometime after her arrest and before Officer Patterson and Mr. Westenberg left the Peel Region courthouse at 2 p.m. to return to Windsor.
100The Applicant was transported to Windsor and arrived there at 6:10 p.m.
101Mr. Westenberg testified that the Applicant spoke to Daniel Topp, a Windsor lawyer, after 7 p.m. but certainly before she spoke with Sgt. Shaw later that evening, on June 5, 2019. The Applicant’s interview with Sgt. Shaw on June 5, 2019 will be discussed below. Sgt. Shaw had also spoken with the Applicant on August 30, 2018 as part of the investigation of the Windsor shootings, which will also be discussed below.
The Voluntariness Issues
102A statement by an accused to a person in authority “will not be admissible if it [was] made under circumstances that raise a reasonable doubt as to voluntariness”: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 68.
103The onus is on the Crown to prove the statement was voluntary beyond a reasonable doubt: Oickle, at para. 30.
104A violation of the confessions rule always warrants exclusion: Oickle, at para. 30.
105When assessing the voluntariness of a confession, the “trial judge must determine, based on the whole context of the case, whether the statements made by an accused were reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority”: R. v. Tessier, 2022 SCC 35, at para. 68.
106The trial judge must consider all relevant factors, including the presence of threats or promises, the existence of oppressive conditions, whether the accused had an operating mind, any police trickery that would “shock the community”, and the presence or absence of a police caution.
107The concept of voluntariness includes the long-standing common law principle that a person is not obligated to provide information to the police or to answer their questions: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at paras. 27, 31.
108This principle is reflected in the commonly worded police caution made to a person under arrest or detention: “You are charged with _______. Do you wish to say anything in answer to the charge? You are not obliged to say anything but whatever you do say may be given in evidence”: Singh, at para. 31.
109This caution informs the person of their right to remain silent: Singh, at para. 31.
110Further, in Singh, at para. 33, the Supreme Court of Canada instructed that:
…with the advent of the Charter, the s. 10 right to counsel is triggered upon arrest or detention. The right to counsel has both an informational and an implementational component. It seeks to ensure that persons who become subject to the coercive power of the state will know about their right to counsel and will be given the opportunity to exercise it so they can make an informed choice whether to participate in the investigation against them. Therefore, if the detainee has exercised his s. 10 Charter right to counsel, he will presumably have been informed of his right to remain silent, and the overall significance of the caution may be somewhat diminished. Where the suspect has not consulted with counsel, however, the police caution becomes all the more important as a factor in answering the ultimate question of voluntariness.
111At the outset of the voir dire, the Applicant took the position that the interviews conducted by Peel Police and the Windsor Police should be excluded pursuant to the operation of ss. 10(a) and 24(2) of the Charter, because the Applicant at the time of her various arrests and various detentions was not promptly and in a meaningful way given the reasons for her arrests and detentions.
112It was also submitted that these interviews should be excluded pursuant to the operation of ss. 10(b) and 24(2) of the Charter in that the Applicant at all relevant times upon arrest and detention was not, without delay, informed of her right to consult with counsel and further was not, without delay, given the opportunity to speak with counsel.
113At the conclusion of the voir dire, Applicant’s counsel during argument advised that he was in essence limiting his submissions to the “main statement”, i.e., the July 10, 2019 statement. He indicated that the other four statements are relevant to the consideration of whether the July 10, 2019 statement was voluntary.
114As set out above, the Crown seeks a finding that the first four statements are voluntary to allow the Crown to use these statements on cross-examination if the Applicant testifies.
115These statements are as follows.
(i) August 28, 2018 Statement to Constable Anita Marzilano, Peel Police (1:35 a.m. – 3:30 a.m.)
116As described above, the Applicant was in custody for unauthorized possession of a firearm when Constable Marzilano was tasked with interviewing her in the early morning hours of August 28, 2018 after the Applicant had spoken with duty counsel.
117After arresting the Applicant for obstructing a police officer and several firearms offences, informing her of right to counsel and cautioning her Constable Marzilano initiated the process for the Applicant to speak to Duty Counsel on these new charges. After the Applicant spoke with Duty Counsel, Constable Marzilano interviewed the Applicant on video for 1 hour, 15 minutes.
118During the interview the Applicant was not responsive. She wanted to return to her cell and sleep. She was cold. She indicated several times she would not answer questions, she did not know what was going on, she had never seen a gun before, she did not own a gun, and the Nissan was not her vehicle.
119The Applicant was fully cautioned and had spoken with duty counsel before being questioned by Constable Marzilano. Constable Marzilano made no threats, nor did she offer any inducements to the Applicant. The Applicant did not assert that there was any oppressive conduct by Constable Marzilano.
120During her testimony on the voir dire, when she was asked questions on cross-examination regarding her interview with Constable Marzilano, the Applicant explained her understanding of a caution as follows:
A. My understanding of a caution, in general, is to let me know that I’m being charged with these offences, I’m not obligated to say anything if I don’t want to say anything, and I have the rights to talk to a lawyer or duty counsel. Yeah.
Q. Okay.
121The Applicant understood she had no obligation to answer Constable Marzilano’s questions.
122I am satisfied that the Crown has proven beyond a reasonable doubt that the Applicant made this statement voluntarily.
(ii) August 30, 2018 Statement to Sergeant Christopher Shaw, Windsor Police (10:01 a.m. – 11:06 a.m.)
123The Peel Police informed the Windsor Police of the arrest of the Applicant who was found in the white Nissan. Mr. Westenberg and Sgt. Shaw, who was also involved in investigating the Windsor shooting, travelled to Peel on August 30, 2018 to speak with the Applicant.
124As they explained, a witness to the Windsor shooting, had identified a white Nissan as a suspect vehicle. One witness at the scene in Windsor believed a dark-haired female was in the front seat of the suspect vehicle. A vehicle (the Nissan) matching the suspect vehicle had been stopped in Peel the following day and they understood a handgun had been recovered.
125Mr. Westenberg testified the Applicant was not a person of interest in their investigation and they knew nothing about her. Sergeant Shaw indicated the Windsor investigation was in its infancy. As he explained on cross-examination, he did not know if the Applicant had been in Windsor August 27 and could not even say that he had a suspicion that she had been there.
126Sgt. Shaw was aware that the Applicant had been arrested, given a primary caution by Peel Police, and had spoken with Duty Counsel.
127Sgt. Shaw informed the Applicant that the room they were in was audio and video recorded.
128Sgt. Shaw provided the Applicant with a secondary caution. He explained the caution in layman’s terms and confirmed that the Applicant had received no promises or threats from a police officer or anyone in a position of authority.
129He informed the Applicant that “there’s no pressure here – you’re not under arrest or anything for anything new” and he wanted to talk to her “about some stuff”. He also informed her that there had been a shooting in Windsor August 27, the suspects were in a white car, “that white car has led us to Peel Region” and “coincidentally the car that we believe that may have been involved in the getaway of the shooting” was the car the Applicant was arrested in, and a gun was found therein.
130According to Sgt. Shaw and Mr. Westenberg, the Applicant was not in jeopardy in relation to the Windsor shooting and as a result Sgt. Shaw did not provide her with a primary caution.
131Sergeant Shaw was pressed on his assertion that the Applicant was not facing jeopardy in relation to the Windsor shootings, and he emphasized that he did not know who she was or her role, if any, in Windsor. He only knew that the Nissan, the vehicle stopped in Peel, in which she was found along with a loaded gun, matched the description of the suspect vehicle involved in the Windsor shootings. Putting it another way, she was a passenger in the vehicle that may have been involved in the Windsor incident.
132Sergeant Shaw indicated that during the interview the Applicant provided him with the name “George” as the driver of the Nissan. She also provided her Snapchat and Instagram name along with other details to further their investigation.
133The Applicant asserted that the seized gun was not hers, she did not know the owner of the Nissan and that “George” had picked her up in the Nissan.
134According to Mr. Westenberg, who monitored Sgt. Shaw’s interview on August 30, 2018, the Applicant did not provide much information at all.
135Considering this interview, it is significant that the Applicant had been detained on the Peel charges, she was questioned by Sgt. Shaw and only given a secondary caution. In relation to this issue, Tessier provided the following instruction at paras. 81-82:
The first step in assessing the importance of the absence of a police caution is therefore to identify whether or not the person was a suspect. …The test is …: whether there were objectively discernable facts known to the interviewing officer at the time of the interview which would lead a reasonably competent investigator to conclude that the interviewee is implicated in the criminal offence being investigated …
The test is objective, and includes both an assessment of the objectively discernable facts known at the time and the interaction between police and the interviewee. Pointed questions, particularly where they suggest the culpable involvement of the individual being questioned, may indicate that the person is a suspect, but pointed questions may have other legitimate ends, depending on the circumstances. A trial judge is best positioned to determine whether the police were simply seeking to gauge a person’s reaction to certain lines of questioning, or whether the questioning is more consistent with the interrogation of a true suspect. While the fact that the police initiated the interview does not, on its own, indicate that a person is a suspect, it may serve as a sign that a person was a suspect where combined with other indications. That said, questions that provoke anxiety or discomfort or even imply guilt do not necessarily mean a person is a suspect. The nature of the interaction between police and the individual and its connection to the objectively verifiable facts is therefore relevant to the suspect test.
Once a court reaches the conclusion that a person was a suspect, the absence of a police caution is not merely one factor among others to be considered. Rather, it is prima facie evidence of an unfair denial of the choice to speak to police, and courts must explicitly address whether the failure created an unfairness in the circumstances (see Oland, at para. 42). It cannot be washed aside in the sea of other considerations. Instead, it serves to impugn the fairness of the statement and must be addressed, by the Crown, in the constellation of circumstances relevant to whether the accused made a free choice to speak. In discharging its burden to prove beyond a reasonable doubt that a statement was voluntary, the Crown will need to overcome this prima facie evidence of unfairness.
136I accept the evidence of Mr. Westenberg and Sgt. Shaw that on August 30 the Applicant was not a suspect in relation to the Windsor shootings. The questions put to the Applicant were not pointed or consistent with the interrogation of a true suspect. Furthermore, there was nothing unfair in how the Applicant was questioned.
137I am satisfied that the Crown has proven beyond a reasonable doubt that the Applicant made this statement voluntarily.
(iii) June 5, 2019 Statement to Sergeant Shaw, Windsor Police (9:20 p.m. – 10:54 p.m.)
138By this point in time, the Applicant had been arrested by Windsor Police for murder and attempted murder in Windsor as described above.
139She had been transported to Windsor from Peel and was interviewed in cells there.
140Sergeant Shaw described his exchange with the Applicant on June 5, 2019 as a post arrest interview after her arrest on the two Windsor charges.
141Sgt. Shaw informed the Applicant that the room they were in was audio and video recorded.
142Sgt. Shaw ensured that the Applicant had been given her rights to counsel and the primary caution. He confirmed that information with the Applicant at the beginning of the interview. He also confirmed that she had spoken with, and received advice from, her lawyer in Mississauga after her arrest in Peel and had also spoken twice with, and secured satisfactory advice from, Mr. Topp, a lawyer in Windsor. During his testimony on the voir dire Mr. Topp confirmed that he had spoken with the Applicant June 5, 2019 as described below.
143Sergeant Shaw provided the Applicant with a secondary caution. He asked the Applicant what that meant to her, and she responded, “it means you’re not influencing me”. He went on and explained the secondary caution in layman’s terms and she confirmed that no one had promised or threatened her about talking to the police.
144Sgt. Shaw tried to develop a rapport with the Applicant speaking to her about her pregnancy.
145He indicated that he believed she was in the suspect vehicle at the Windsor shooting. He referred to the evidence the police had and what led him to believe she was in the car. In particular, he referred to information and data from what he believed was her cell phone.
146The Applicant asserted she was with her sister August 27 when the shootings occurred in Windsor.
147While Sgt. Shaw continued to outline information and present the results of the search of the cell phone the Applicant was not responsive.
148Several times she indicated she was not going to say anything, but suggested Sgt. Shaw continue.
149Sgt. Shaw continued to outline more reasons why he believed she was the one who used the Nissan all the time.
150Later in the interview, the following exchange took place:
CS: Like I explained to you before Keima you don’t have to talk to me. You don’t have to answer my questions. But as the police, we still have a right to talk to you.
KD: I know.
CS: And interview you. Okay.
KD: Yes.
CS: You don’t have to talk. So if you wanna just sit there quietly cause it’s more comfortable up here and get it over with we could do that or you can go down and have a break. What do you wanna do? You wanna just get it over with?
KD: (Nods)
CS: Is that a yes?
KD: (Nods)
151The Applicant reiterated that she was never in the car.
152Sergeant Shaw encouraged the Applicant to be truthful and do the right thing for her baby, but the Applicant said very little.
153The interview ended with Sgt. Shaw suggesting several things to think about and further suggesting that she return to cells, lie down, and relax.
154Sergeant Shaw’s conversation with the Applicant ended at 10:54 p.m.
155The following morning at 12:44 a.m., he went into the detention unit to see the Applicant. He spoke to her at 1:12 a.m. She did not feel well enough to speak further.
156The Applicant was fully cautioned and had spoken with counsel prior to her June 5, 2019 statement.
157During her testimony on the voir dire, she acknowledged that Officer Patterson had given her the primary and secondary caution after she was arrested for murder and attempted murder on June 5, 2019 and Sgt. Shaw confirmed that she had received those cautions before he started his interview that day. She further acknowledged that she understood the cautions, that she had spoken with a lawyer in Peel, and that she had also spoken with Mr. Topp.
158Mr. Topp was called by the Crown and testified on the voir dire. The Applicant waived her solicitor-client privilege immediately prior to Mr. Topp testifying. She permitted Mr. Topp to testify to and/or disclose any aspect of the case including but not limited to, any of their discussions between June 5, 2019 and November 15, 2021 (Exhibit 4).
159Mr. Topp has practiced law for 21 years specializing in criminal law. He testified that his first interaction with the Applicant was on June 5, 2019 when she called him from cells in Windsor after her arrest for attempted murder and murder. He advised her that it was in her best interests not to say anything.
160The Applicant heard Mr. Topp’s evidence and agreed that Mr. Topp had given her that advice.
161Furthermore, the Applicant acknowledged during her cross-examination on the voir dire that Sgt. Shaw had given her a secondary caution on June 5, the third time she had received such a caution and she understood what it meant. In addition, she acknowledged that later in her interview Sgt. Shaw “made it clear” she didn’t “have to talk” to him but he was going to ask her questions.
162It is clear the Applicant understood she was not obliged to answer questions and had the right to remain silent. There were no threats, inducements, or oppressive conduct.
163I am satisfied that the Crown has proven beyond a reasonable doubt that the Applicant made this statement voluntarily.
(iv) June 6, 2019 statement to Sergeant Shaw (8:49 a.m. – 9:09 a.m.) followed by statement to Brian Moore, Peel Police (9:20 a.m. – 10:29 a.m.)
164The following morning Sgt. Shaw spoke with the Applicant again. He stated that the “stuff I explained to you still applies from yesterday”.
165Sergeant Shaw encouraged the Applicant to tell the truth and do the right thing for her child. The Applicant remained unresponsive. Sergeant Shaw pointed out implications for the Applicant’s sister arising from the Applicant using her sister as her alibi. He suggested more than once she could see her sister “on the range”.
166He referenced information obtained from what he asserted was her cell phone. The Applicant continued to state she was at home in Peel on August 27.
167Sergeant Shaw ended his interview by introducing Officer Brian Moore of the Peel Police who indicated to the Applicant that he was part of an investigation of numerous incidents. Officer Moore informed the Applicant that the room they were in was audio and video recorded.
168Officer Moore also tried to develop a rapport with the Applicant by discussing her pregnancy.
169He then gave her the primary caution in relation to her new charges of murder and attempted murder.
170The Applicant acknowledged she was not truthful in her August 28, 2018 statement and had provided an incorrect birthdate and did not give her hyphenated name.
171Officer Moore indicated he did not want to talk to her about the Windsor investigation. He was interested in the Nissan in relation to the shootings in Peel. He asked her about the Nissan in which she was arrested August 27, 2018. The Applicant was not responsive and indicated she did not want to say anything because she knew “how these things go”.
172The Applicant was asked about her cellphone and eventually acknowledged her cellphone had been with her when she was arrested August 27, 2018.
173The Applicant indicated she “knows of” the guy who was in the driver’s seat of the Nissan. He was a guy that she met but she does not know his name.
174She acknowledged previously giving the name “George”.
175She did not respond to the suggestion that there was no “George” in the contact list in her phone.
176Generally, the Applicant was unresponsive to Officer Moore’s questions.
177Officer Moore continued to ask her who she was with, and the Applicant asked “can I do this with my lawyer? I don’t want to say anything that’s gonna…”.
178Officer Moore continued to indicate she will “feel relieved” if she tells the truth and he indicated that he was going to give her an opportunity to speak with her lawyer.
179He exited the interview room at 10:29 and Officer Shaw entered and advised the Applicant that she will be brought downstairs to speak to her lawyer.
180The Applicant was cautioned. There were no circumstances that raise any concern that this statement was not voluntary. It is clear that the Applicant understood she did not have to answer questions.
181I am satisfied that the Crown has proven beyond a reasonable doubt that the Applicant made this statement voluntarily.
(v) the July 10, 2019 statement to Sergeant Shaw, Windsor Police (11:09 a.m. – 5:43 p.m.)
182With respect to the July 10, 2019 statement, the Applicant’s position is that this statement was obtained by the violation of her s. 7 Charter right to remain silent. She asserted in her Notice of Charter Application that the officer who took the statement did not, before commencing the statement, warn her that anything she said would be recorded and could be used in evidence against her.
183The Applicant also submitted that the July 10, 2019 statement was obtained in violation of the Applicant’s s. 7 Charter right to remain silent “in that there was ineffective assistance of counsel involved which led to the making of that statement”. As set out in her Notice of Charter Application, “although the Applicant did consult with counsel before this statement was given, it is her position that she was led to believe by her counsel that if she gave the statement that the police would not still be proceeding on the murder charge against her”.
184Because the Applicant’s Notice of Charter Application included an assertion there had been ineffective assistance of counsel “which led to the making” of her statement July 10, 2019, Mr. Topp was made aware of his former client’s assertion. He replied by letter dated November 23, 2021 (Exhibit 5) to an email communication from the Crown. Mr. Topp noted in his letter that he did not have a waiver of privilege from the Applicant, and he stated the following:
[I am writing in response to your email dated November 18, 2021.]
I decline to be interviewed by the police. However, I am prepared to tell you the following with regards to my discussions with Ms. Pagliaroli [the Windsor Deputy Crown]. Early on I did explore with Ms. Pagliaroli the possibility of some type of cooperation agreement. Then I was advised that if there were to be any further discussions of this it would have to be with a Crown from another office. I was then put into contact with Michael Carnegie and it was very clear that there would be no agreement to withdraw the charges in exchange for a statement. There are no written agreements between myself and Ms. Pagliaroli, any other Crown or police officer.
Ergo, it is my position that there was no inducement. I do not feel comfortable saying more without a written waiver of solicitor-client privilege from Ms. Davis-Baynes.
185Mr. Topp testified that he spoke with the Applicant November 15, 2021 regarding her Application and she agreed that “there was no co-operation agreement, there was no promises, there was nothing”. Mr. Topp was challenged on this evidence. It was put to Mr. Topp that this evidence was untrue and the Applicant had made no such statement. He was asked if he had any notes of that phone call. Mr. Topp indicated that he had “a memo to file that he handwrote the next day”. During the court recess that immediately followed that exchange, Mr. Topp retrieved his handwritten memo to file dated November 16, 2021. This memo noted that Mr. Topp spoke with the Applicant’s current counsel about this application on November 15, 2021, that he had spoken to him on two occasions, and that the Applicant would call Mr. Topp. The Applicant called Mr. Topp and he noted in his memo the following:
Told Keima no cooperation agreement, she is cooperating witness. Keima: ‘I know Daniel, but the Crown is such a fucking asshole’.
186As previously noted, the Applicant waived her solicitor-client privilege before Mr. Topp testified. He testified that after meeting with the Applicant in the cells at the Windsor courthouse, he attended at the Crown’s office in Windsor on June 6, 2019 to obtain a synopsis of the case.
187On June 8, 2019 he met with the Applicant for two hours at the Southwest Detention Centre. The following days, June 9, 10, and 11, he met with her again for one hour each day and then met with her on June 15 for a shorter meeting.
188Mr. Topp testified that he received instructions from the Applicant that she wanted to provide a statement. She was pregnant and in jail. Obtaining bail was problematic because she had a serious drug case in Thunder Bay. She directed him to deal with the statement first.
189Mr. Topp spoke to Ms. Pagliaroli regarding the Applicant’s case again on June 9 and 11. Mr. Topp informed her of the Applicant’s willingness to provide a statement.
190On cross-examination, Mr. Topp explained further that in a three-way call on June 10 – amongst him, the Applicant, and her mother – they discussed the Applicant giving a statement and in return for her cooperation he would look into having her charges withdrawn. He acknowledged that that was absolutely what he intended “at the start”. He acknowledged the Applicant’s mother came to his office two, probably three times between early June and July 10, and he did not deny “there was talk about” the potential of the Applicant giving a statement and the charges being withdrawn.
191He also indicated that “early on there was talk about witness protection”. However, any type of agreement with the Crown “didn’t get off the ground”.
192Mr. Topp testified that Ms. Pagliaroli indicated she was not offering any sort of inducement in exchange for the statement. Ms. Pagliaroli further advised that Mr. Carnegie of the London office would become involved with the Applicant as a cooperating witness.
193Mr. Topp’s evidence is consistent with Mr. Westenberg’s. Mr. Westenberg testified that it was around June 14 that Ms. Pagliaroli, made him aware of the Applicant’s possible statement, and he was advised that Mr. Carnegie from the Regional Crown’s Office would now be involved.
194Mr. Westenberg testified that he believed that there had been conversations between Mr. Topp and Ms. Pagliaroli before June 14 and that is why the file was passed on to the Regional Crown. Ms. Pagliaroli sent Mr. Westenberg an email dated June 14, 2019 advising that Mr. Carnegie wanted to meet with him June 25 or 26 (Exhibit 3).
195Mr. Westenberg’s meeting with Mr. Carnegie took place in Windsor on June 26.
196On July 2, 2019 Mr. Carnegie emailed Mr. Westenberg and advised that defence counsel was “proposing an unconditional statement from his client”, which Mr. Westenberg understood to mean the Applicant wanted to provide a statement with no conditions. Mr. Carnegie inquired about Mr. Westenberg’s “capacity to facilitate the interview” on either July 9 or 10. Mr. Westenberg replied on July 3 that July 10 would work, and Mr. Carnegie responded on July 4 advising that “July 10 is off” because the Applicant was going to Thunder Bay. Mr. Westenberg was aware the Applicant was facing drug charges in Thunder Bay. On July 5, 2019 Mr. Carnegie wrote and requested that July 10 “be kept open” (Exhibit 2).
197Ultimately, on July 5 2019, the Applicant gave her written consent to an application (Exhibit 6) for an “order for attendance to assist peace officers in the execution of their duties” pursuant to s. 527(7) of the Criminal Code (the “Olsen order”):
I, Keima Ahliya Davis-Baynes, am represented by counsel, Daniel Topp, and have received legal advice respecting a Crown application under s. 527(7) of the Criminal Code to have me removed from custody and brought to the Windsor Police detachment for purposes of a voluntary interview on July 10, 2019.
I, Keima Ahliya Davis-Baynes, consent to voluntarily accompany members of the Windsor Police Service on July 10, 2019 from my custodial institution to the Windsor Police for purposes of participating in a voluntary interview.
I, Keima Ahliya Davis-Baynes, understand that during the Court’s prescribed period on July 10, 2019, I will remain in the custody of the Windsor Police while assisting their investigation then be returned to the Southwest Detention Centre when my assistance has been completed.
I, Keima Ahliya Davis-Baynes, have read this consent, received legal advice and understand that which I am consenting to. I do so freely and voluntarily.
198Mr. Topp testified that he reviewed this document with the Applicant, provided legal advice, and witnessed her signature.
199Pursuant to the Olsen order, the Applicant met with Sgt. Shaw on July 10, 2019.
200On July 10, 2019, Sgt. Shaw gave the Applicant a secondary caution and explained:
CS: So just in layman’s terms it means no one’s either promised you or threatened you and if you don’t talk to me today about the case, something good or something bad could happen to you.
KD: (Nodding)
CS: Has that been done?
KD: No.
201On July 10, 2019, the Applicant read the following “Warning to Witness” and signed the document (Exhibit 1):
Warning to Witness
This statement shall be taken by oath, solemn affirmation or solemn declaration and will be videotaped.
You must understand that it is a criminal offence to mislead a Police officer during an investigation. You may be liable to prosecution under Section 140 of the Criminal Code of Canada. If you mislead a Police officer during this investigation and if convicted, you could be sentenced up to five (5) years in jail.
You must also understand that it is a criminal offence to attempt to obstruct justice during a Police investigation, and if you do so, you could be prosecuted under Section 139 of the Criminal Code of Canada and if convicted, you could be sentenced up to ten (10) years in jail.
You must further understand that you may be a witness at a trial concerning the events you describe in your statement. If at any time you change your statement or claim not to remember the events, the contents of the statement you are about to give may be used as evidence at the trial. In such circumstances, you may be liable to prosecution for fabricating evidence under Section 137 of the Criminal Code of Canada and if convicted, you could be sentenced up to fourteen (14) years in jail.
DO YOU UNDERSTAND THE CRIMINAL CONSEQUENCES OF MAKING A FALSE STATEMENT?
DO YOU PROMISE THAT THE STATEMENT YOU ARE ABOUT TO GIVE SHALL BE THE TRUTH?
I ACKNOWLEDGE THAT I HAVE RECEIVED THE ABOVE WARNING.
202Mr. Westenberg described Exhibit 1 as “common” for all witnesses to sign and the Applicant, who was making a voluntary statement, was being treated as a witness. He testified that he would not have given Sgt. Shaw instructions to have Exhibit 1 signed as Sgt. Shaw would have known to do so on his own. Similarly, Officer Roberts testified that this warning is used for all witnesses who are interviewed.
203Further, on July 10, 2019, the Applicant swore before a Commissioner of Oaths that her evidence would be “the truth, the whole truth and nothing but the truth”.
204Sgt. Shaw advised the Applicant that their interview would be audio and video recorded. He informed the Applicant that they believed that she was in Windsor at the time of the Windsor shooting “and that you’re part of this case” and that she was to tell “basically her story”.
205The Applicant spoke about “Blanco” who she started hanging out with around August 12 or 13, 2018. She had made two payments on the Nissan on behalf of Blanco. She travelled to Windsor on August 27 as a front seat passenger in the Nissan while Blanco drove. There was a male she did not know in the rear passenger seat. Blanco had told her “he was going to fly to Windsor and come back”. Blanco was very secretive. Once they arrived in Windsor the two males “hopped out” of the Nissan. She could not see them and they “came rushing back to the car”. They did not answer her questions. They drove off and got lost and she put GPS on her phone.
206As they were driving out of the city, her friend in Windsor sent her a snap chat message text that her friends “home boy just dropped out” which meant her friends friend just passed away.
207The Applicant indicated that she asked her friend what had happened and was told he was shot in downtown Windsor. When she told her friend she had just left downtown Windsor, her friend told her to “Google it” – which she did. Her friend also sent her a picture of the guy who she indicated she had never seen before.
208The Applicant further indicated in her statement that she never saw a gun, did not hear anything, and Blanco did not answer her questions.
209After a long break from 3:14 to 4:40, Sgt. Shaw continued the interview and advised the Applicant that some evidence from her cellphone is “not lining up with” what she had said. He reiterated:
CS: Uh, and same thing applies this morning. Uh, the Caution still applies. Right.
KD: Mmhmm. (Nodding)
CS: You still understand all that.
KD: Yes.
CS: And no one’s promised or threatened you.
KD: No.
CS: And while you were on your break or anything.
KD: No.
210When she testified on the voir dire, the Applicant explained she used her cellphone for GPS when they were lost, and she Googled after her friend told her “her young boy dropped out”. She asserted that none of that activity was done to help Kahli or the other man in the car with respect to any criminal endeavor and she “didn’t know of anything criminal that was happening”.
211The Applicant also confirmed on the voir dire that in her July 10 statement she referred to Kahli as “Blanco” and that Kahli, Blanco, and Kahli Phillips are the same person.
212The Applicant further confirmed she agreed to give the July 10, 2019 statement and explained why she agreed as follows:
Q. Did you agree to give the statement?
A. Yes, I did.
Q. Why did you agree?
A. I agreed to give the statement because my lawyer told me that the Crown would be willing to withdraw my charges, put me in witness protective custody with my family, and change my name.
Q. Okay. And when – when did he tell you that?
A. He told me this – we started having these discussions the first week that I was sent to Southwest Detention Centre.
Q. But when – but when you finally got – when you finally got to the point of being taken downtown, did you agree to go downtown and give – give a statement to the Windsor Police Service?
A. At that day, yes. On July 10th, yes, I did agree.
Q. And why did you agree?
A. I agreed because my lawyer told me that if I gave this statement admitting that I was in the car because some ping – ping me 45 minutes outside of Windsor, that the Crown would withdraw my charges, he would change my name, and put me in witness protective custody, with my family because he knows how dangerous all of this can be.
Q. If, in fact, you hadn’t been – if you hadn’t been told that, would you have give the statement?
A. No.
Q. Why not?
A. Because they already had me there. I was already in – I was already being charged for things I wasn’t doing. They didn’t want to give me bail. I don’t want to have my baby in jail.
213She further confirmed:
Q. Yes. Well, then – in your mind, how certain was it that if you gave the statement, the charges would be withdrawn?
A. Dan Topps told me that it was a done deal between him and the Crown.
Q. And what – what was the done deal?
A. That if I gave this statement that they would withdraw my charges from against me, that they would change my name, and put me and my mom, my family, in witness protective custody.
Q. Right. And…
A. Because they were concerned for my safety.
Q. If there – if you hadn’t had this done deal being offered, would you have given the statement?
A. No.
Q. Why not?
A. Because at that point, they were just going to leave me at the institution because my counsel said the Crown would not be willing to give me bail because of my charges in Thunder Bay.
214She explained that she signed the Olsen order and was told by Mr. Topp to indicate that nothing had been promised her because her deal was “hush hush”:
Q. Okay. What happened that day?
A. So on July the 10th, they sent a police cruiser to come to the institution. I signed a paper for them to take me. They then took me to the courthouse. When I got to the courthouse, Dan came, he spoke to me. He said he just wants me to be…
Q. Okay.
A. So he came, he spoke to me, he said he just wants me to be as honest as I could, try to remember as much as I possibly could because this is going to get me out of here and I could go home, and have my baby.
Q. Right.
A. He then said to me, this – this deal is between him and the Crown, so it’s basically hush-hush, and that – he told me when I go upstairs and they ask me under oath if anything is being promised to me or give to me in – in exchange for the statement, that I have to say, no, as the deal is not going to go through.
Q. What do you mean? What do you mean by that?
A. He said if I – I had to say, no, else the deal between him and the Crown wasn’t going to work out for me to get my charges withdrawn and for me to change my name and be put into witness protective custody.
215She testified that she also signed the Warning to Witness on the same basis and untruthfully responded to Sgt. Shaw’s secondary caution for the same reason:
Q. And then you – you end up signing that document [warning to witness] that you just referred to; is that correct?
A. Yes.
Q. And then what happens then?
A. And then he read me – he cautioned me. He asked me if anything was promised or given to me for this statement…
Q. Where were you when he – when he did that?
A. In the detective – in the – in the room, the interrogation room.
Q. And he asked you if anything was promised?
A. Yes.
Q. And he cautioned you?
A. Yes, he did.
Q. And what did you tell him?
A. I told him, no, like my counsel advised me to do.
Q. Was that true? That nothing had been promised to you?
A. No, that was not true. A lot of stuff was promised to me…
A. Well, they promised to withdraw my charges, they promised to change my name, they promised to put me in a – in a witness protective custody, for me and my family to get a house. So a lot of stuff was promised to me.
Q. But you – but you ended up telling Officer – Officer – what was his name?
A. Chris Shaw.
Q. Shaw. That nothing was promised to you?
A. Yes, because Daniel Topps told me that when they asked me that, I cannot say anything was promised to me because this deal was between him, them, and the Crown attorney.
Q. Yes. Did you ask why – Mr. Topps why – why you were supposed to say – tell them something that was false?
A. I did, and he said that the Crown – between him and the Crown, and the detectives, the deal was being made between them and no – but basically nobody was supposed to know about this deal besides them.
Q. Where were you when Mr. Topps told you that again?
A. I was downstairs in the court – in the police station.
Q. That very day?
A. That very day, yes.
Q. So you told Mr. – Officer Shaw something that was false with regard to no promises having been offered?
A. Exactly.
216During her cross-examination on the voir dire, the Applicant elaborated further:
Q. Right? So you knew right from the beginning that you were going to be giving a statement under oath, yes?
A. Yes.
Q. You knew, at least from the warning to witness, that ….
A. Yes.
Q. … that to mislead to an officer is a criminal offence, yes?
A. Yes.
Q. And so, when the officer gets to these secondary caution, which you know because you previously received it in other interviews…
A. Yes.
Q. … you lie?
A. Because I was told that I could not go up there and say, yes, things are being promised to me. I was told that I needed to go up there and comply with everything that was being put in front of me. And that’s what I did.
Q. Right. So your evidence is a defence counsel of more than 20 years told you to lie to police?
A. Yes, he did.
Q. That a defence counsel of more than 20 years had you sign on Olsen order saying it was a voluntary interview, but you said you knew that was false.
A. Yes. He made me – he told me I – when I went up there and if they ask – if anything was being promised to me, that I had to say, no.
Q. and I put to you that there was no promises to you.
A. No, I put to you that there was promises being made to me.
Q. Right. Dan Topp’s evidence was very clear that he felt that from your evidence that you were innocent.
A. Exactly. And that’s why he wanted me to give this statement and in return for it, I would get all these things that I told you he said I would be getting.
Q. But if you were innocent, that in and of itself would get a withdrawal; isn’t that true?
A. It would be, but he said you guys would not want to give me bail because I – I was already facing charges up in Thunder Bay. And he did not want me to, also, have my baby in custody. And this is the only reason why we were taking this route because the Crown would not want to give me bail.
Q. And Dan Topp’s evidence was because you were innocent and because the statement you said was – was going to be truthful, that the Crown would likely, then, withdraw, but there was no deal. That was his evidence. Do you recall that?
A. Yes, which was a lie.
Q. So I’m sorry, Dan Topp lied about that?
A. Yes, he did.
Q. So the Exhibit 6, the Olson order, is a lie….
A. All of it was a lie.
217She also testified that Mr. Topp told her that the deal changed after she concluded her statement on July 10, 2019:
A. He then told me that to finalize my deal, they’re going to give me a two-for-one, which means that they’re going to withdraw my charges in Thunder Bay and in Windsor, but I have to go to Windsor – I mean, I have to go to Thunder Bay so they could see how I perform.
218She indicated that this new condition had not been mentioned to her before and “they just threw that at me after the interview”, and went on to say:
A. If I went to Thunder Bay and I performed, exact word, performed, how they wanted me to, which was see how I was going to be as a witness, that they would give me a two-for-one deal, which meant now that my charges in Windsor and my charges in Thunder Bay would be withdrawn, my name would be changed, and I would be put in witness protective custody.
219The Applicant testified that on her journey back to Windsor from Thunder Bay in August 2019, she called Mr. Topp from Penetang who told her that the Crown did not want to go through with the deal, something she had not been told up to that point. During this same conversation, Mr. Topp indicated he could not continue as her counsel because several years prior he had represented the deceased’s brother in court. He recommended another lawyer for her to pursue a bail hearing.
220The Applicant’s position was that the July 10, 2019 statement was not given voluntarily by the Applicant. Her counsel observed that up to that point the Applicant had not been co-operating with the police in any meaningful way. While she had a clear reason to give a statement – she was in the late stages of pregnancy, and she very much wanted to be released from custody – she had been refusing to tell the police much of anything.
221The Applicant suggests the catalyst for her change in outlook and her co-operation with the police was “the deal” she was offered, which her current counsel described as “a very sweet deal”. He described this “inducement” as “mind moving”. This deal had “a kicker” to it, which required the Applicant to state that there were no promises made to her – a statement that he acknowledged required the Applicant to lie.
222The Applicant’s counsel submitted that the “agreement under the table” moved the Applicant to make a “180” in terms of her willingness to speak to the police and this agreement was “not honoured”. He asserted that common sense dictates that the Applicant is to be believed and Mr. Topp chose not to tell the truth because it would expose Mr. Topp to what the Applicant’s counsel described as malpractice. He further submitted that the Crown “deep sixed” evidence from Ms. Pagliaroli and Mr. Carnegie and “obviously” their evidence would not have been useful to the Crown.
223I am unable to accept the Applicant’s position for the following reasons.
224There is no basis for the assertion that the Crown has breached its duty to be fair and has “deep sixed’ relevant evidence. As Mr. Westenberg, who spoke with the Crown, testified at no time was he aware of any consideration being offered to the Applicant in exchange for her statement. This is consistent with Mr. Carnegie’s July 2, 2019 email to Mr. Westenberg that “an unconditional statement” from the Applicant was being proposed by Mr. Topp. Similarly, Officer Roberts and Sgt. Shaw had no knowledge of any consideration offered to the Applicant. As Officer Roberts testified his understanding and belief as to why the Applicant gave her statement was that she was charged with very serious offences, and she wanted “her side to be heard”. Sgt. Shaw explained that his role was to conduct the interview as assigned.
225This evidence squares with Mr. Topp’s evidence. Mr. Topp testified that the first time he spoke with Mr. Carnegie it was clear that there would be no deal with the Crown:
A. The first time I talked to him, he – the first things out of his mouth were ‘if you’ve had any discussions about any deals with anybody that is not going to be offered by me’ or words to that effect. So, there was – it was very clear that there was no exchange.
226Mr. Topp explained further on cross-examination that:
When Keima approached me to talk to the Crown, I approached the Crown. We talked to, I talked to Ms. Pagliaroli about what the agreement would look like. There was talk about…
…witness protection, and I asked Keima about that, and she said she was not interested in that. But, in any event, no matter what we talked about, it had to go to an outside Crown. At a later date, around June 26th, or so, that’s when it went to the outside Crown, and that’s when it was all, ‘No, No, No, No, No’. And that was way before the statement, and through the Olsen order everything at that point, we knew that it was ‘No’.
227It was put to Mr. Topp on cross-examination that before the Applicant agreed to give the statement on July 10, he told her the following: that both the Thunder Bay and the Windsor charges would be withdrawn, that she would have to go to Thunder Bay to testify against her co-accused for the Crown to see how she performed, that once she testified both sets of charges would be withdrawn, and as part of the deal she would be given a change of name and would be put into a witness protection plan.
228Again, Mr. Topp was very clear that there was no such deal.
229I am satisfied that there was no deal, no co-operation agreement, and no promise made by the Crown before the Applicant gave her statement on July 10, 2019. To use the words of the Supreme Court of Canada in Tessier, referenced above, there was no conduct of the state that served in any way to unfairly deprive the Applicant of her free choice to speak to a person in authority.
230I note also that the Applicant’s evidence was that she saw Mr. Topp during the time she gave her statement on July 10 when he would tell her that she needed to be more specific, to express herself better and elaborate more and she had to continue because this was the only way she was going home. However, her evidence is contrary to Mr. Topp’s evidence which was consistent with the evidence of Sgt. Shaw, and also the evidence of Mr. Westenberg, and Officer Roberts, who watched the whole interview from the monitor room, that Mr. Topp was not seen in the police station that day.
231Furthermore, I am satisfied that Mr. Topp did not misrepresent the facts to the Applicant. Her evidence that she was told she had a deal, which was the basis for her giving her statement, is inconsistent with her written consent to the Olsen order and her responses to the secondary caution. Her evidence ignores her obligations pursuant to her oath and defies the warning to witness. Her explanation that such responses and behaviours were pursuant to Mr. Topp’s instructions because he had arranged an “under the table deal” is impossible to accept. I agree with the Crown that it defies belief that Mr. Topp would witness the Olsen order and produce it as a lie.
232Mr. Topp testified that “way before” the Applicant gave her statement, he informed both the Applicant and her mother that Mr. Carnegie would not make any deal.
233Mr. Topp’s evidence that he reported to the Applicant that “there would be no deal” and that the Applicant was still prepared to give a statement is credible and makes sense. It is consistent with the documentation that the Applicant signed.
234The credibility and reliability of this evidence is not diminished by the assertions of the Applicant’s counsel that this evidence (that Mr. Topp allowed the Applicant to give a statement without a deal) reveals “malpractice of the highest order”.
235In response to the question why the Applicant maintained her position and was willing to give a statement without a deal, Mr. Topp explained as follows:
Q. All right. And did she explain why she still, was still prepared to give a statement?
A. Because she – in her words – had nothing to do with this, she was innocent, and she was a witness.
Q. So, did you have any discussions with her then at that time about I guess the potential dangers of providing this statement to the police when she was in fact charged with both first degree murder and attempt murder”
A. Absolutely. That, you know, obviously I’ve been doing this for 21 years, its – this is not a usual situation for me. Usually people want to keep quiet, but she wanted to talk for a myriad of reasons.
Q. And were you supportive or did you try to dissuade her from doing this? I’m just trying to understand, in your 21 years as a defence counsel, what position was – did you have and what were the advantages and disadvantages of providing a statement?
A. Based on what she told me, which I believed to be true, she in fact would be a witness. She didn’t shoot this guy. She was there and she could provide some detail to that.
Q. Did you discuss any potential I guess dangers of her providing this statement?
A. Well exactly this, that they could still pur…. – sorry, they, the Crown could still proceed. There was no cooperation agreement.
236On cross-examination Mr. Topp reiterated that the Applicant initiated the idea of giving a statement and he was asked about her motivation to do so:
A. Her motivation, sorry….
Q. What was her motivation, to your understanding, for her giving the statement?
A. Well, she was simply in the car. She didn’t shoot anybody, and she wanted to give a statement.
Q. Statement, what, what, what, what, what did she, what did it appear that she wished to get out of that?
A. Well, first of all she advised me because she was pregnant that this lifestyle was something she didn’t want to be involved with any more. And she wanted out of this, and she wanted to give a statement to get away from these people.
237Mr. Topp was pressed on cross-examination that he must have said to the Applicant “this is foolishness. Why are you giving a statement? It’s not going to do you any good. …They won’t, there’s no deal” and advised the Applicant against giving the statement.
238Mr. Topp responded that his first words to the Applicant when he spoke to her on June 5 was not to say a word to the police. After he informed the Applicant there was no deal, he asked her if she was sure she wanted to make a statement. Mr. Topp testified that the Applicant wanted to move forward. She wanted to give a statement. Mr. Topp indicated that he advised her to be very careful and that everything she said had to be truthful.
239Several times during his testimony Mr. Topp stated that the Applicant “went through it all” with him. Mr. Topp testified that he “believed every word” that the Applicant said and “she was nothing more than a cooperating witness”. According to Mr. Topp, “her statement shows that she did nothing wrong. She was innocent”.
240Mr. Topp also indicated that after the Applicant gave her statement, he approached Mr. Carnegie because he “was hopeful” that her charges would be withdrawn.
241According to a question of the Applicant’s counsel to Mr. Topp on cross-examination, within a few days after giving her statement on July 10, the Applicant was transferred to a number of different institutions enroute to Thunder Bay where she testified against her co-accused. Mr. Topp repeatedly denied telling the Applicant, as was suggested to him on cross-examination, that “she had to go. It was part of the deal that the Crown wanted to see how she would perform”.
242Mr. Topp agreed with the suggestion of Mr. Orr that “the timing was suspect” and testified as follows:
A. I agree with you a hundred percent. The timing of that was suspect. I reached out to her lawyer, Mr. Green, in Thunder Bay, and apparently that was scheduled before. And then she was in custody and they transported her there. I was not happy about that at all. She was pregnant and she was transported under horrible conditions, not even in just a police car with a direct route. She bounced around from jail to jail.
Q. Oh, you said just a minute ago you agree with me that the timing was suspect.
A. Well…
Q. What do you mean by that, sir, that the timing was suspect?
A. I, I agree. I mean, she gives her statement here, and then she disappears.
Q. But she gives her statement here and then she, then she almost immediately is taken to Thunder Bay to testify, right? Against her co-accused, right?
A. Absolutely.
243Notwithstanding his agreement with the suggestion of Applicant’s counsel that “the timing was suspect”, Mr. Topp vehemently denied that he had made it clear to the Applicant that “as part of the deal”, “the Crown wanted to see how well she’d testify” in Thunder Bay
244I find this evidence to be more plausible. The Applicant was represented by other counsel in relation to the Thunder Bay charges. There is no evidence that Mr. Topp brokered any deal with regard to the Thunder Bay charges or that he was made aware that her Thunder Bay counsel had done so.
245Furthermore, when the Applicant testified on the voir dire and was asked in chief if she testified against her co-accused, she responded “I didn’t testify against my co-accused, I testify in what I said the day I was arrested in the room. That statement”. She confirmed her co-accused was on trial at the time and “after I finished testifying, they took me off as co-accused”. Her counsel asked what she meant by that, and she explained that she no longer had a co-accused, “I’m still on the charges, but I’m no longer tied in with my co-accused”.
246I find the evidence to be clear that the Applicant was fully informed that she was not required to give a statement on July 10, 2019. I am satisfied that there were no promises made to the Applicant. She was not threatened. The conditions in which she made her statement were not oppressive. There was no police trickery of any nature. She had an operating mind.
247I am satisfied that the Crown has proven beyond a reasonable doubt that the Applicant gave the July 10, 2019 statement voluntarily.
“Justice L.C. Leitch”
Justice L.C. Leitch
Released: June 30, 2023
COURT FILE NO.: CR-22-5406
DATE: 2023-06-30
ONTARIO SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
Keima Davis-Baynes, Applicant
RULING ON CHARTER APPLICATION
Leitch J.
Released: June 30, 2023