ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King, Applicant/Respondent
- and -
Ammar Patel, Respondent/Applicant
COUNSEL: M. Gardiner and V. Decker, for the Crown K. Scott and E. Ghebrai, for Ammar Patel
HEARD: March 31 and April 1-4, 2025
RESTRICTION ON PUBLICATION
This Ruling is subject to a Ban on Publication pursuant to s. 648(1) of the Criminal Code of Canada and shall not be transmitted, reproduced or broadcast in any manner until the Jury is sequestered or a further Order of this Court allows.
MITCHELL, J.:
Ruling (Crown voluntariness application and defence applications re: sS. 10 (a) and (b) charter)
Introduction
1Mr. Patel stands charged with one count of first degree murder in the death of Lynda Marques contrary to s. 235(1) of the Criminal Code of Canada (the “Code”).
2This case is currently scheduled for a 3-week jury trial commencing June 9, 2025. In anticipation of trial, pretrial applications were heard, including an application to determine the admissibility of an audio/video-taped statement made by Mr. Patel to the London Police Service (“LPS”) on November 18, 2021 following his arrest in Toronto on unrelated charges.
The Applications
3The Crown brings this voluntariness voir dire seeking a ruling that Mr. Patel’s statement is admissible as part of the Crown’s case at trial.
4Should voluntariness be established, Mr. Patel seeks an order excluding his statement pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms (the “Charter”) claiming a breach of his ss. 10(a) and 10(b) Charter rights.
5These reasons explain the rulings I have reached.
Background and Evidence
6On September 10, 2021 at approximately 7:48 P.M., Lynda Marques returned home driving a white Dodge Charger motor vehicle usually driven by her fiancée, Ali Bhatti. The vehicle had tinted windows. She pulled into the driveway of the home she shared with Mr. Bhatti, which was located in an upscale, residential neighbourhood in north London.
7While stopped in the driveway and still seated in her vehicle, a black Volkswagen Jetta motor vehicle approached and stopped at the end of the driveway. Two passengers exited the Jetta and approached the Charger. They were masked and carrying handguns. The driver of the Jetta, whom the Crown alleges was Mr. Patel, remained in the vehicle.
8The two individuals approached the driver’s side of the Dodge charger and open-fired multiple rounds into the driver’s side window before fleeing back to the Jetta. The Jetta fled the scene. Ms. Marques was shot 13 times in the head, neck and chest. She died of these gunshot wounds.
9The Jetta was found abandoned in south London 5 days later.
10Police checks conducted on the Jetta revealed that it had been reported stolen in Toronto 5 days prior to the murder.
11Following its seizure by police, Centre of Forensic Sciences examined the Jetta. During that examination, a possible hair root was located on the driver’s seat. DNA testing of the root could not exclude Mr. Patel as the source of the hair root.
12Unrelated to the LPS murder investigation, during the Fall of 2021 Mr. Patel was under investigation by the Toronto Police Service (“TPS”). This investigation was dubbed “Project Malibu”. TPS allege that during five separate transactions conducted on September 16, 22 and October 18 and 26 and November 5, 2021, Mr. Patel sold drugs and/or guns to undercover Detective Constable, Gavin Alias. These transactions will be referred to throughout these reasons as the “Project Malibu charges”.
13Unrelated to the Project Malibu undercover operation, on October 18, 2021, TPS allege that Mr. Patel was involved in an incident involving the discharge of a firearm in the area of 751 Don Mills Road in Toronto.
14Working together in furtherance of their respective investigations involving Mr. Patel, TPS and LPS developed a plan for the “takedown” and arrest of Mr. Patel with respect, only, to the discharge firearm offences. As part of their combined investigative plan, once arrested, Mr. Patel would be placed in a holding cell with undercover officer Alias. LPS officers would be given an opportunity to question Mr. Patel in connection with the murder of Lynda Marques hoping to stimulate a conversation between Mr. Patel and DC Alias once Mr. Patel was returned to cells following the interview.
15In furtherance of the investigative plan, on November 8, 2021 Detective Constable Mike Comeau of the LPS applied for and was granted by Justice G. Orsini an authorization to intercept communications with consent pursuant to s. 184.2 of the Code (the “Authorization”). The Authorization permitted the interception of private communications between Mr. Patel and undercover officer Alias, among others. The Authorization was supported by an Information to Obtain sworn by DC Comeau (the “ITO”).
16The investigative plan was described in detail in paragraphs 227 and 228 of the ITO. These paragraphs read:
- The objectives for the authorization to intercept the private communications of a person where either the originator of the private communication or the person intended by the originator to receive it has consented to the interception, are as follows:
a. Obtain evidence in relation to Ammar Patel’s involvement in the murder of Lynda Marques;
b. Identify the occupants that were in the Volkswagen Jetta at the time of Lynda Marques’s murder;
c. Identify the driver of the Ford Fusion at the time of Lynda Marques’ murder and confirm that the Ford Fusion was involved in the murder plot;
d. Identify any other parties who conspired in the murder of Lynda Marques;
e. Identify any other persons who are associated to Ammar Patel for the purpose of trafficking controlled substances and firearms including firearms similar to the style that murdered Lynda Marques;
f. To obtain further evidence against Ammar Patel in relation to the trafficking of Schedule I substances;
g. To obtain further evidence against Ammar Patel in relation to the trafficking of firearms; including firearms similar to the style used to murder Lynda Marques;
h. To obtain further evidence in relation to Ammar Patel’s involvement into the shooting that occurred at 751 Don Mills Road, Toronto;
- I have compiled a general list of investigative steps that I believe, combined with the intercepts, will afford evidence of the named offences. It should be noted that the investigation is fluid and while it is the intent of the investigators to execute this plan as it is laid out, it is possible not all of the steps will be taken if a) it is deemed they are no longer relevant or b) at the time they are to be taken, there is a risk to jeopardizing the integrity of the investigation. The investigative steps in the investigative plan should this application be granted are as follows:
a. Consenting officer, Detective Constable Alias will continue to act in an undercover capacity while communicating with the Principal Known Person (Ammar Patel);
b. Detective Constable Alias with (sic) introduce a second consenting undercover officer, listed in paragraph 4(b) as another potential buyer of controlled substances;
c. Detective Constable Alias will encourage Ammar Patel to travel with him in a rented white Dodge Charger, similar to the vehicle Lynda Marques was operating at the time she was murdered. The purpose of this trip will be to deliver controlled substances to the second consenting Undercover Officer listed in paragraph 4(b). The vehicle will be equipped with audio recording equipment;
d. Detective Constable Alias and Ammar Patel will travel in the direction of London Ontario for the controlled substance delivery;
e. While communicating with Ammar, the undercover officer will discuss the background of the second consenting undercover officer as a drug trafficker in the London area, who is looking for another supplier of controlled substances, due to the mounting tensions in London as a result of recent murders and shootings;
f. Detective Constable Alias and Ammar Patel will meet with the second consenting officer listed in paragraph 49(b) for the purpose of trafficking controlled substances;
g. On another occasion, Detective Constable Alias will arrange a controlled drug purchase with Ammar Patel;
h. Members of the Toronto Police Service may choose to arrest Ammar Patel for the shooting that occurred at 751 Don Mills Road, Toronto, based on reasonable grounds to believe, following the controlled drug buy, in the presence of consenting officer undercover officer Detective Constable Alias;
i. If this arrest occurs, consenting officer, Detective Constable Alias will also be arrested with Ammar Patel for the offence of possession of a Schedule I substance for the purpose of trafficking;
j. Both Ammar Patel and Detective Constable Alias will be transported to the Toronto Police Service detention facility, to be processed under the above listed charges;
k. Investigators in the London Police Service will attend the detention facility and question Ammar Patel in relation to the murder of Lynda Marques. Ammar Patel will be provided his rights to counsel and caution in relation to all of the listed offences;
l. After being interviewed by members of the London Police Service, in relation to the murder of Lynda Marques, Ammar Patel will be returned to his holding cell where he will be lodged with Undercover Officer Detective Constable Alias;
m. Consenting officer, Detective Constable Alias will be provided with audio recording equipment to capture any conversations that he has with Ammar Patel in relation to the listed offences;
n. In the event that Ammar Patel is released from the custody of the Toronto Police Service, Detective Constable Alias will continue to meet with Ammar Patel periodically for further controlled purchases of controlled substances and firearms, and further discussions of the listed offences.
17That portion of the investigative plan detailed in subparagraphs 228 (g) through (m) above was ultimately implemented. However, instead of a controlled drug purchase, a controlled firearm purchase was arranged by DC Alias with Mr. Patel to take place on November 17, 2021. As per subparagraph (h) of the plan, members of the TPS decided to arrest Mr. Patel for the discharge firearm charge following the controlled firearm purchase.
18At approximately 11:25 p.m. on November 17, 2021, undercover officer Alias met with Mr. Patel in the parking lot of the East York Town Centre located at 61 Overlea Boulevard in Toronto for the purpose of purchasing a firearm from Mr. Patel.
19While Mr. Patel was seated in the front passenger seat of DC Alias’ unmarked police vehicle, DC Alias signalled to members of the Emergency Task Force (ETF) waiting in separate vehicles parked nearby, to proceed with the takedown and arrest of Mr. Patel.
20As the uniformed ETF officers approached the undercover vehicle in which DC Alias and Mr. Patel were seated, an ETF officer deployed a distraction device known as a “flash bang” in the direction of the front passenger side of the vehicle where Mr. Patel was seated.
21Immediately following detonation of the “flash bang”, Mr. Patel exited and ran from the vehicle throwing a quantity of cash into the air.
22As Mr. Patel ran westbound through the shopping centre parking lot, he was pursued by Sargent Gerrard Arulanandan, Police Constable Yiorgo Christodoulou, Police Constable Jeff Hynek and Police Constable David Monteiro, in that order.
23All officers were in full uniform wearing vests. Sargent Arulanandan had his pistol drawn and aimed at Mr. Patel. As Mr. Patel ran from the officers, his hands were not visible. Sargent Arulanandan issued a police challenge yelling “police, don’t move”. In response, Mr. Patel hesitated, slowed a bit and looked back towards the four police officers in pursuit. As he looked backward, Sargent Arulanandan observed his hands gripping the waist band of his trackpants. Sargent Arulanandan feared he had a firearm tucked in his waistband. The same movement was observed by officers Christodoulou and Hynek.
24Immediately following the police challenge, Mr. Patel stopped and moved slowly to the ground. At the same time, Sargent Arulanandan caught up to him and “fully grounded” him facedown on the asphalt. Mr. Patel’s hands were underneath his body and not visible to the officers.
25Sargent Arulanandan demanded that Mr. Patel place his hands behind his back. Mr. Patel did not comply with the demand. Concerned for police, public and Mr. Patel’s safety should Mr. Patel accidentally discharge the firearm which he believed was under his body, Sargent Arulanandan placed his left knee on the right side of Mr. Patel’s lower body and attempted to free Mr. Patel’s right arm. Constable Christodoulou arrived next on scene and similarly attempted to free Mr. Patel’s left arm from under the left side of his body.
26Constable Hynek arrived moments later and attempted to assist officers Arulanandan and Christodoulou. He struck Mr. Patel‘s forehead with his boot two times in quick succession. After receiving the second strike to his head, Mr. Patel turned his head and body slightly in the direction of Constable Hynek which allowed the officers to free his arms from under this body and place his hands behind his back.
27Constable Monteiro arrived on scene. He straddled Mr. Patel’s lower body with his back to Mr. Patel’s head and the other officers. He held Mr. Patel’s legs and ankles. Once officers Arulanandan and Christodoulou were able to free Mr. Patel’s hands from under his body, Constable Monteiro assisted Sargent Arulanandan in handcuffing Mr. Patel.
28Once in handcuffs, Mr. Patel was turned over to Detective Constable Rick Rhone. Constable Rhone described himself as the “road boss”. He was responsible for ensuring the orderly takedown of Mr. Patel and the execution of the search warrants.
29Simultaneous to the takedown and arrest of Mr. Patel, tactical teams in and outside Toronto were executing CDSA warrants at multiple addresses associated with Mr. Patel.
30Constable Rhone escorted Mr. Patel to a marked police cruiser operated by police constable Rob Gundert. This police vehicle was equipped with an in-car camera and audio recording system. Once in the “scout car”, Constable Gundert advised Mr. Patel he was under arrest for recklessly discharging a firearm and provided him with rights to counsel and caution. Mr. Patel confirmed that he understood his rights and when he was asked whether he wished to call a lawyer, he responded; “Yes, sir”. When asked whether he had his own lawyer or wanted duty counsel, he responded: “I need to talk to my parents first for my lawyer.”
31A satchel found on Mr. Patel at the time of his arrest was searched by Constable Rhone on the hood of the police vehicle. From the satchel, police seized quantities of fentanyl, cocaine, crack cocaine and methamphetamine, loose ammunition, Canadian currency, and drug paraphernalia. With respect to the seized contraband, Mr. Patel was further arrested by Constable Rhone for possession for the purpose of trafficking of a Schedule I substance and possession of proceeds of crime. Constable Rhone provided Mr. Patel with rights to counsel and cautioned him with respect to these additional offences. Constable Rhone offered Mr. Patel an opportunity to talk to duty counsel or his lawyer to which Mr. Patel responded: “Just give me duty counsel first.”
32Constable Gundert assured Mr. Patel that once at the station, he would be put in contact with a lawyer of his choice or duty counsel and given privacy to speak with his lawyer. Mr. Patel said that he understood. While being transported to the station, Mr. Patel repeatedly complained that his wrists and hands hurt and requested that his handcuffs be loosened.
33Constable Gundert arrived with Mr. Patel at the station for 53 Division at 12:02 a.m. on November 18, 2021. At 12:10 a.m. the booking process began. The process was audio and video recorded. Constable Gundert remained with Mr. Patel throughout the entire process. During the booking process the following exchange took place between Mr. Patel and Officer-in-charge, Sargent Peter Henry:
SGT. HENRY: … Do you understand why you were arrested?
MR. PATEL: [no verbal response]
SGT. HENRY: I need you to verbalize a yes or a no.
MR. PATEL: Yes, I understand.
SGT. HENRY: I’m sorry, yes? Okay. All right. Okay, do you understand your rights to counsel?
MR. PATEL: I do.
SGT. HENRY: Okay. Do you wish to call a lawyer, including duty counsel?
MR. PATEL: I’d like to call duty counsel and my – – my parents.
SGT. HENRY: Okay. All right. So, are you – – how old are you?
MR. PATEL: I’m 18.
SGT. HENRY: You’re 18? You’re an adult? Okay. So, first things first is we’ll deal with the duty counsel.
MR. PATEL: Mm-hmm.
SGT. HENRY: Your parents, as long as it’s okay with the investigators, we can make that arrangement, but first things first is the duty counsel.
MR. PATEL: All right.
34Sgt. Henry observed redness on Mr. Patel’s forehead and bandages on the tops of his hands. When asked about the injury to his forehead, Mr. Patel responded “that he did not know what it was”. Although minor in nature, Sargent Henry documented Mr. Patel’s hand injury and forehead redness and filed an injury report.
35During the booking process in response to Sgt. Henry’s questions, Mr. Patel confirmed that he had consumed marijuana approximately 20 minutes prior to his arrest. He had not consumed any alcohol; and did not have any mental health concerns. Mr. Patel was asked whether he had any injuries. Mr. Patel answered: “no”. He further confirmed that he was not suicidal and did not have any disabilities or require accommodations.
36Mr. Patel was subjected to a frisk search. During the search Mr. Patel removed his pants. Underneath those pants Mr. Patel was wearing another pair of pants and a pair of gym shorts which he was permitted to keep on during the search. Sgt. Henry assured Mr. Patel that if he was cold a jumpsuit would be provided for warmth. Mr. Patel did not request a jumpsuit or complain of being cold.
37As provided for in the investigative plan, undercover officer Alias was arrested at the same time Mr. Patel. All of the TPS officers who testified on the applications explained that in order to maintain the integrity of the Project Malibu undercover operation, TPS did not arrest Mr. Patel for the Project Malibu offences.
38Once the booking process was completed Constable Gundert contacted duty counsel. Before handing the phone to Mr. Patel, he confirmed for duty counsel that Mr. Patel was 18 years of age and had been arrested for reckless discharge of a firearm, possession for the purpose of a Schedule I substance x 3, and possession of proceeds of crime. Mr. Patel spoke with duty counsel at 12:24 a.m. – approximately one hour following his arrest.
39Constable Gundert did not advise duty counsel that Mr. Patel also potentially faced charges relating to the Project Malibu offences.
40At 1:11 a.m. on November 18, 2021, Mr. Patel was escorted into an interview room. Detective Constable Daniel Ilson and Detective Constable Justin Essert, the TPS officers responsible for investigating the October 18th reckless discharge of firearm incident, questioned Mr. Patel. At the outset of the interview, the officers confirmed with Mr. Patel that he had spoken with duty counsel. Mr. Patel asked to be put in contact with two other lawyers – Sheldon Weisner and Kim Schofield.
41Mr. Patel was then provided with his rights to counsel and also primary and secondary cautions with regards to the additional charges arising out of his search incident to arrest. He confirmed to Constables Ilson and Essert that he understood his rights and the caution and again asked to speak with his lawyers of choice. Constable Ilson assured Mr. Patel that he would try to reach both lawyers and would facilitate a telephone call between these lawyers and Mr. Patel once contact was made.
42Constable Ilson left the interview room to place a call to Mr. Weisner. In his absence, Officer Essert continued to speak with Mr. Patel and asked Mr. Patel whether he had any potential sureties.
43Upon returning to the interview room, Constable Ilson confirmed Mr. Patel’s “jeopardy” and the total charges being investigated. He explained that in addition to the charges described at the beginning of the interview, Mr. Patel was also being charged with possession of fentanyl for the purpose of trafficking with respect to drugs found on his person at the time of his arrest. He was advised that he may be facing additional charges relating to drugs and a firearm which had been located in the vehicle.
44To provide Mr. Patel with an opportunity to speak with his lawyer, the interview with TPS officers was concluded shortly after 2 a.m. Mr. Patel was returned to his holding cell. The phone log indicates a call was placed and a message left for Mr. Weisner at 2 a.m.
45At 2:36 a.m. Constables Morrison and Pavoni of the LPS commenced their interview of Mr. Patel. The questions asked and answers given during this interview form the statement which is the subject matter of these applications.
46At the outset of the interview, Constable Morrison provided Mr. Patel with rights to counsel and provided a secondary caution. Their exchange in this regard was as follows:
DC MORRISON: … so we are here investigating – and before you say anything, I want to go over some legal stuff with you, okay? Um, we’re investigating a homicide, ah, that occurred in London, Ontario, ah, on September 10 of this year, 2021. Of, the homicide of Lynda Marques. Okay. Toronto has contacted us, and notified of your arrest here tonight and that’s why we’re here to talk to you specifically because your name has come up in our homicide investigation, okay? Um, we believe that you were involved in our homicide investigation… but because of that we have to advise you of some certain legal rights, right, um, because, your legal rights are important to us, okay? Um, this room is – there’s a camera right there, all right, you can see it, it’s powered on. It’s audio and video recorded. I have a little recorder there that’s powered on as well. It’s just recording us just in case that technology fails us or something. Um, you are not under arrest for, at all for this homicide. I just want you to be clear of that, okay? Um, you are under arrest for some other stuff from Toronto.
MR. PATEL: Mm-hmm.
DC MORRISON: We’re not – we don’t care about that. We’re not here about that, for that today, okay?
MR. PATEL: Yeah.
DC MORRISON: We’re here about a homicide, okay, and we want to talk to you about that, um, because like I said your name has surfaced ah, throughout the course of this homicide investigation and we believe that you are involved in that, okay?
MR. PATEL: Mm-hmm.
DC MORRISON: Because of the information that we believe that you were involved…
MR. PATEL: Mm-hmm.
DC MORRISON: …it means that you fa – you have some jeopardy in this as well, okay? Which means you could ultimately be charged with first degree murder. All right. Does that – you kind of understand what I’m saying right now?
MR. PATEL: Yeah.
DC MORRISON: Okay. Because of the jeopardy that you could face I have to do some legal – read you some legal things and what I want to do before I actually talk to you about this homicide investigation, ah, to get your side of the story…
MR. PATEL: Mmm.
DC MORRISON: …I want to give you an opportunity to speak to a lawyer again. Okay, Or duty counsel. I don’t know who you’ve been talking to. I’ve been told you talked to a lawyer, duty counsel already.
MR. PATEL: I just talked to duty counsel. I haven’t talken (ph) to a lawyer yet.
DC MORRISON: Talk to duty counsel, okay. Well, duty counsel’s a lawyer.
MR. PATEL: Mmm.
DC MORRISON: Um, but I want to just go over some things. So like I said, you’re under no obligation to say anything to us, right? You don’t have to talk to us, that’s your legal right. Um, you’ve talked to a lawyer already, but because we’re investigating a homicide, and the charges that you’re facing right now are what you’re under arrest for right now, obviously murder is a higher degree, right? I want to give you an opportunity to consult with a lawyer again before talking to us, okay?
MR. PATEL: Mm-hmm.
DC MORRISON: Um but you’re not under arrest for this homicide, you’re not charged for our homicide.
MR. PATEL: Mm-hmm.
DC MORRISON: Okay. Anything that you could say to us…
MR. PATEL: Mm-hmm.
DC MORRISON: …um, you’re not obliged to say anything at all, but anything that you could – did say to us, could be used as evidence against you in the future. Right?
MR. PATEL: Yeah.
DC MORRISON: Okay. Um, the other thing too, and I know – I don’t know how long you’ve been here, um, for a few hours or…
MR. PATEL: (Indiscernible).
DC MORRISON: Okay. Um, I know it – you probably have interacted with lots of police officers since you’ve been here. Um, I want to read what’s known as a secondary caution to you. So basically what this is, is um, like you haven’t been threatened, promised anything since you’ve been here, Ammar?
MR. PATEL: No.
DC MORRISON: No. Okay. Um, no one’s told you, you know, you know some officers are going to bring you upstairs, I want to make sure you give them a statement kind of thing.
MR. PATEL: No.
DC MORRISON: Noth – nothing like that. Okay. Um, as long as you’re aware that you don’t have to talk to us…
MR. PATEL: Mm-hmm.
DC MORRISON: …um, you are in custody, all right, um, we – we can question you, but we have to advise you of your jeopardy…
MR. PATEL: Mm-hmm.
DC MORRISON: …and because this is a homicide investigation, and you’re in custody on other charges, um, I want to give you an opportunity to consult with a lawyer…
MR. PATEL: Mm-hmm.
DC MORRISON: …before we talk to you, okay?
MR. PATEL: Yeah.
DC MORRISON: Um, and I want to make sure you’re aware, right now you’re not under arrest, but you could ultimately be charged with first – first degree murder. Okay. Your name has come up in this homicide investigation, Ammar.
MR. PATEL: Mmm.
DC MORRISON: We believe that you were involved in it and that’s why we came all the way from London to talk to you. Okay. Um, so I don’t know where – this is not our barn, right? We don’t know how things work here but we’ll try and get you back downstairs to talk to a lawyer.
MR. PATEL: Yeah, I don’t have to talk to a lawyer. I know my rights.
DC MORRISON: Okay. I just want you to be aware just to – to let them know that there’s some homicide detectives here…
MR. PATEL: Mm-hmm.
DC MORRISON: …from London that want to talk to you.
MR. PATEL: Well, they haven’t – they haven’t spoken to me.
DC MORRISON: What’s that?
MR. PATEL: Ah, since I tried to get in contact with them.
DC MORRISON: Who – who’s that? Your le – your legal…
MR. PATEL: My lawyer.
DC MORRISON: Okay. So you – what’s your lawyer’s name?
MR. PATEL: Well, I was trying to get in contact with two lawyers.
DC MORRISON: Two lawyers?
MR. PATEL: Yeah.
DC MORRISON: Oh, and they’ve probably made calls to them or…
MR. PATEL: I don’t know, I’m not sure.
DC MORRISON: Okay. But you’ve – you’ve talked to – I was told that you…
MR. PATEL: I – I talked to duty counsel.
DC MORRISON: Okay.
MR. PATEL: That’s – that’s all.
DC MORRISON: Okay. And they are lawyers.
MR. PATEL: Yeah.
DC MORRISON: Um, and – and maybe they haven’t – what we’ll try to do is get you in touch with the lawyers that you wanted to. If they’re not available then we – I mean, duty counsel they are lawyers there. We’ll have you talk to them, um, before we talk to you, and go over some things. Um, does that make sense…
MR. PATEL: Yeah.
DC MORRISON: …To you, okay?
MR. PATEL: Makes sense.
DC MORRISON: All right. I think there’s an officer out here. Does that – we’ll take you down and I will – we’ll talk to you after you have a chance to talk to your lawyer or duty counsel, okay?
MR. PATEL: All right.
DC MORRISON: All right.
OFFICER JOEL PAVONI: Thanks Ammar. We’ll – we’ll talk to you in a few minutes, once they ah, give your – thanks fellows.
[Mr. Patel leaves the interview room]
[Mr. Patel returns to the interview room]
DC MORRISON: Okay. Hey, Ammar, so um, I just want to make sure. Ah, nothing’s changed here okay. This room – obviously you see this camera right here, the audio recorder. You’re being audio and video recorded, okay. Um, that officer there, I understand that a phone call was made to Legal Aid, your lawyer. Um, did they get back to you or – okay. But you don’t want to speak to a lawyer is what they told…
MR. PATEL: Ah, I – I pretty much know what they’re going to tell me.
DC MORRISON: Okay.
MR. PATEL: Yeah.
DC MORRISON: And that’s your legal right, okay?
MR. PATEL: Yeah, yeah.
DC MORRISON: Um, you know, because of the jeopardy that you could be facing here…
MR. PATEL: Mm-hmm.
DC MORRISON: …um, I want you to know that if at some point you do want to go talk to Legal Aid…
MR. PATEL: Mm-hmm.
DC MORRISON: …you let me know and we’ll – we’ll make that happen okay?
MR. PATEL: Yeah.
DC MORRISON: You don’t have to say shit to the police, right? That’s your legal right. Um, and it’s an important one that you need to understand, okay? Um, but it’s also important that anything you – you understand that anything you do say, could be used as evidence against you in the future, right?
MR. PATEL: Mm-hmmm.
DC MORRISON: Okay.’ Cause we’re not, ah, I want to make that clear to you, um, but I think you understand that, okay? Um, so any point you want to go talk to legal aid let me know. I will make that happen. All either call that number that they gave me or I’ll – will go back down there and run down there and make that happen, okay?
MR. PATEL: Mm-hmm.
DC MORRISON: So, like I said, Ammar, were not here – sorry, am I saying you’re – I’m saying your name right, right?
MR. PATEL: yeah.
DC MORRISON: Ammar? Okay. Um, were not here to talk about why you are – do you care if I take this off by the way?
MR. PATEL: Ah…
DC MORRISON: I’m fully vaccinated, I just – it’s – it’s bugging me. Um, we’re not here to talk to you about why you’ve been arrested for Toronto – by Toronto. We are not Toronto police officers, okay?
MR. PATEL: Mm-hmm.
DC MORRISON: um, we have no involvement in any of that. Um, we were contacted by them and notified of your arrest and that’s why we came down here to talk to you about our investigation. Okay.
MR. PATEL: Mm-hmm.
47In total, nine (9) TPS officers and one (1) LPS officer testified. Mr. Patel’s interactions with members of the LPS and members of the TPS were audio and video-recorded. Transcripts of the audio recordings were filed as exhibits on the voir dire.
48Mr. Patel chose not to testify or file affidavit evidence in support of his position on the applications.
The Statement
49The statement forming the subject matter of these applications is Mr. Patel’s statement to Constables Morrison and Pavoni. The Crown is not seeking to admit Mr. Patel’s utterances in the scout car as he was being transported to 53 Division. The Crown is not seeking to admit Mr. Patel’s utterances to Sgt. Henry when being booked into cells. The Crown is also not seeking to admit at trial Mr. Patel’s statement from his interview with the TPS officers, Ilson and Essert. Last, the Crown is not seeking to admit at trial any portion of the conversations between undercover officer Alias and Mr. Patel during their time spent together in cells following their joint arrest on November 17, 2021.
50With respect to questions regarding the homicide, Mr. Patel responded:
DC MORRISON: All right. This is more serious than what you’re here today for, I can tell you that.
MR. PATEL: Mm-hmm.
DC MORRISON: This is first-degree murder we are talking about.
MR. PATEL: Yeah.
DC MORRISON: So when we look at your phone…
MR. PATEL: Yeah.
DC MORRISON: …and we haven’t yet, we’re going to get a warrant, were going to do that…
MR. PATEL: Mm-hmm.
DC MORRISON: … It’s going to tell me if you were in London or not.
MR. PATEL: Yeah.
DC MORRISON: All right. So that’s something that we are going to be doing. I want you to be aware of that.
MR. PATEL: Yeah.
DC MORRISON: Um, you’ll get that phone back eventually when we are done with it.
MR. PATEL: Mm-hmm.
DC MORRISON: um, but before we look at that, man to man here, this is your chance. It could be your only chance to get in front of this to tell me your side of the story, because your name has come up in our investigation, or else we would not be here talking to you, man.
MR. PATEL: Mm-hmm.
DC MORRISON: Okay.
MR. PATEL: I understand.
DC MORRISON: You understand that?
MR. PATEL: Yes sir.
DC MORRISON: Is there anything you want to tell me about [the homicide]?
MR. PATEL: Nothing.
DC MORRISON: Anything on that phone that you’re worried about that I should know about?
MR. PATEL: Nothing I can say right now, nothing I can think of.
DC MORRISON: Okay. So you’ve never been to London.
MR. PATEL: No.
DC MORRISON: You don’t know Lynda Marques?
MR. PATEL: No.
DC MORRISON: You weren’t involved in this homicide?
MR. PATEL: No.
DC MORRISON: You don’t even know about this homicide.
MR. PATEL: I don’t even know.
DC MORRISON: Yeah. Um, and you don’t know a male named Ali Bhatti?
MR. PATEL: No.
The Issues
51The issues on this voir dire are:
- Was the statement voluntary?
- Were any of Mr. Patel’s Charter rights violated?
- If so, should the statement be excluded pursuant to s. 24(2) of the Charter?
52Different burdens are at play. The Crown must prove voluntariness of the statement beyond a reasonable doubt while the applicant must prove any Charter violation on a balance of probabilities.
Positions of the Parties
53The applicant advances a series of arguments in support of his position which can be briefly summarized as follows:
- With respect to the voluntariness of his statement to officers Morrison and Pavoni, the methods and tactics of the TPS used during his arrest resulted in (i) the absence of an operating mind; and/or (ii) an atmosphere of oppression which led to his will to speak being overborne. In the result, a reasonable doubt arises as to the voluntariness of his statement.
- With respect to his s. 10 Charter argument, he, and by extension his duty counsel, were deceived as to his actual jeopardy because he (and duty counsel) was not made fully aware of the reasons for his arrest and his jeopardy with respect to the Project Malibu charges before speaking with duty counsel. Consequently, the Charter rights provided and his exercise of those rights were rendered meaningless.
54The Crown asserts:
- Mr. Patel’s statement to Constables Morrison and Pavoni was voluntary. Mr. Patel had an operating mind and made a voluntary, conscious decision to speak with the LPS officers after refusing to exercise his right to counsel. Mr. Patel’s will to speak was never overborne, whether by individual or cumulative circumstances.
- In response to the Charter applications, the investigative plan impugned by the defendant was subject to prior judicial authorization which has not been challenged on these applications.
- Furthermore, Mr. Patel was not lied to or deceived by police during and following his arrest on November 17, 2021 other than by the ongoing nature of the undercover operation (Project Malibu). Mr. Patel was not afforded his s. 10(a) and 10(b) Charter rights with respect to the Project Malibu charges at the time of his arrest for discharge firearm on November 17, 2021 because the undercover investigation was continuing.
- The defence has not established that police intended to charge Mr. Patel immediately with the Project Malibu charges when he was arrested November 17, 2021 such that he ought to have been given his rights to counsel on those charges as well. The investigative plan was clear that the Undercover Operation may continue past the takedown should Mr. Patel be released from custody.
- If a Charter breach is established on a balance of probabilities, such breach was minimal and the admission of the statement would not bring the administration of justice into disrepute.
The Applications
1. Crown’s Voluntariness Application
55On the voluntariness application, the Crown must prove beyond a reasonable doubt that Mr. Patel’s statement to LPS officers, Morrison and Pavoni, was voluntary.
56It is trite law that any statement made by an accused person to a person in authority must be voluntary so as to be admissible as evidence in support of the Crown’s case against the accused at trial. This applies to both inculpatory and exculpatory utterances. Here, the statement does not include utterances which could be construed as a “confession” or inculpatory in nature. Rather, Mr. Patel’s utterances to the LPS officers are exculpatory.
57Presumably, the Crown will seek to undermine Mr. Patel’s credibility, regardless of whether or not he chooses to testify at trial, by introducing evidence which directly contradicts Mr. Patel’s exculpatory statement to Constables Pavoni and Morrison.
General Legal Principles
58An accused’s utterance to a person in authority will not be admissible in evidence if it is made under circumstances that raise a reasonable doubt as to its voluntariness. To assess the voluntariness of a statement, all of the circumstances of the situation in which the statement is given must be considered.1 The court in Oikle made it clear that voluntariness is a contextual analysis requiring the court to consider the entire circumstances of the statement - that is, all relevant factors surrounding the accused and the circumstances in which the statement was made.2 The analysis must also be “sensitive to the particularities of the individual suspect.”3 In this way, the individual characteristics of the accused are relevant considerations.4
The inquiry is to be contextual and fact-specific, requiring a trial judge to weigh the relevant factors of the particular case (Singh, at para. 35; R. v. Kelly 2019 NLCA 23, 374 C.C.C. (3d) 360, at para. 40). It involves consideration of "the making of threats or promises, oppression, the operating mind doctrine and police trickery" (R. v. Spencer 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 12). These factors are not a checklist: ultimately, a 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 (Parent, at pp. 26-27; Vauclair and Desjardins, at No. 38.28).
60It is not disputed that Mr. Patel’s statement to the LPS officers was given to “persons in authority”, namely, Constables Pavoni and Morrison.
61Mr. Patel alleges that at the time of his statement he lacked an operating mind and the conduct of police, taken as a whole, was oppressive to the point it raises a reasonable doubt as to the voluntariness of his statement.
Atmosphere of Oppression
62An atmosphere of oppression surrounding the taking of a statement may render the statement involuntary if the will of the accused to choose to speak (or to remain silent) is overborne. This may be the case, even if there are no threats or inducements. The presence or absence of oppression is a question of fact that depends on the circumstances of each case.
63As was aptly summarized in the recent Supreme Court of Canada decision in R. v. Beaver6 at para. 49:
Oppression focuses on the atmosphere of a police interview. This court has accepted that “[o]ppression clearly has the potential to produce false confessions” because a suspect may “[c]onfess purely out of a desire to escape [inhumane] conditions” (Oickle, at paras. 58 and 60). The non-exhaustive factors that can create oppressive conditions include depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; or excessively aggressive, intimidating police questioning for a long time (Oickle, at paras. 58-60; Tessier (SCC), at para.99).
64The ultimate issue for consideration is whether the applicant exercised free will or whether his will was overborne in choosing to speak to police in the circumstances in which the statement was provided.
65Mr. Patel argues he was subjected to oppressive conditions during his arrest and following his arrest which endured until the time of his interview by the LPS officers and which created an atmosphere of oppression giving rise to a reasonable doubt as to the voluntariness of his statement. Mr. Patel also alleges police engaged in intimidation tactics and trickery with regards to advising him of his true jeopardy in relation to the Project Malibu charges.
66To begin, counsel for Mr. Patel suggests that the “takedown” and arrest of Mr. Patel was chaotic and violent leading to oppressive conditions at the time of his interview by the LPS officers.
The Flash-Bang
67Immediately prior to the “takedown”, undercover officer Alias was transacting with Mr. Patel for the purchase of a firearm. Once signalled, the ETS officers detonated a “flash bang” as a means of distracting Mr. Patel to assist in his takedown and arrest. Police witnesses accepted the suggestion by defence counsel that detonation of the “flash bang” could cause temporary blindness and deafness to those in close proximity. Police witnesses also accepted the suggestion that a person could suffer burns if they came in contact with a “flash bang” at the moment of detonation. The collective evidence of the police officers was that the “flash bang” was detonated approximately 10 feet from the front passenger seat of the undercover vehicle where Mr. Patel was sitting. There is no evidence that Mr. Patel came in contact with the “flash bang”. Furthermore there is no evidence from which it may be inferred that Mr. Patel suffered blindness, deafness and/or ringing in his ears, temporary or otherwise, as a result of detonation of the “flash bang”.
68At no time during his interactions with police (captured on audio and/or video recordings) did Mr. Patel express any difficulty hearing. In fact, his responses to questions asked of him by Constables Rhone and Gundert at the time of his arrest were entirely appropriate and demonstrate that Mr. Patel had no difficulty hearing. Later, during the booking process Mr. Patel expressly denied having any injuries and made no complaint of any discomfort or mention of any issue with his ability to hear.
Manner of Arrest
69On these applications, the applicant does not challenge the extent of the force used by police during his arrest. Understandably, there is no Charter application alleging a s. 7 or s. 12 breach arising from excessive force used during the “takedown” and arrest of Mr. Patel given the circumstances with which the police were confronted.
70I find that at the time of the takedown and his arrest, the arresting officers had reasonable grounds to believe Mr. Patel was armed with a firearm. These reasonable grounds include:
(a) the officers were briefed that the prior Project Malibu transactions had involved, in part, the sale of firearms by Mr. Patel;
(b) the officers were briefed that Mr. Patel was arrestable for a charge of discharge firearm relating to an incident occurring October 18, 2021;
(c) the transaction arranged by undercover officer Alias with Mr. Patel to precede the takedown involved the purchase of a firearm from Mr. Patel;
(d) at the time the takedown was called, the arresting officers did not know whether the transaction had been completed with possession of the firearm transferred to undercover officer Alias, or whether the firearm remained in the possession of Mr. Patel; and
(e) as Mr. Patel was running from police, his hands were not visible and at one point he was observed grabbing at his waist or the front of his body where police believed a firearm was tucked into the waistband of his pants.
71Mr. Patel was not cooperative. He ran from police. He refused to show his hands. He refused to place his hands behind his back once grounded. In these circumstances, I find it was reasonable for Constable Arulanandan to have used force to ground Mr. Patel. Furthermore, once Mr. Patel was grounded with his hands under his body, Constable Hynek used reasonable force to administer two strikes to Mr. Patel’s forehead in an effort to distract Mr. Patel and assist officers Arulanandan and Christodoulou in extracting his hands from under his body where police feared he was concealing a firearm. Constable Hynek testified that the extent of force used in striking Mr. Patel’s forehead was akin to tapping snow off one’s boot. He further testified that time was of the essence in getting control of Mr. Patel’s hands because there was a risk the firearm, which he believed was under Mr. Patel’s body, could be discharged during the struggle placing police and Mr. Patel at risk of serious harm.
72I find that the force used by the arresting officers during the takedown and arrest of Mr. Patel was at all times reasonable and necessary having regard to the exigent, volatile and chaotic situation with which they were faced.
73Defence counsel suggested during cross-examination of the police witnesses that the force of the “takedown” and in particular Constable Hynek’s strikes to Mr. Patel’s head could have resulted in a concussion or a minor brain injury leaving Mr. Patel unable to understand the reasons for his arrest and/or his rights to counsel and his right to remain silent. The evidence does not support this suggestion or allow for this inference to be drawn.
74Once Mr. Patel had been arrested, the circumstances quickly de-escalated. Constables Rhone and Gundert were professional and courteous to Mr. Patel. No further force was used by police. Mr. Patel engaged with the police officers and advocated for his interests including requesting that he be permitted to speak to his parents to obtain the name of a lawyer and repeatedly requesting his handcuffs be loosened. Once at the station, Mr. Patel expressly denied having any injuries and did not complain of discomfort from the handcuffs.
75During the interview conducted by LPS constables, Pavoni and Morrison, Mr. Patel stated: “I’m freezing. I got slammed in water and everything. I’m freezing right now.” There is no evidence that Mr. Patel was wet or was “slammed in water” during his interactions with police. I note that Mr. Patel’s complaint of being “slammed in water” was first mentioned during his interview with London police; more than three hours following his arrest. None of the officers who interacted with Mr. Patel following his arrest noted that he was damp or wet.
Right to Counsel and Caution
76Mr. Patel was arrested for discharge of firearm relating to the October 18, 2021 incident. He was then rearrested for the drugs and money found in his satchel during the search conducted incident to his arrest. Immediately upon being advised of his right to counsel, Mr. Patel asked to speak with a lawyer.
77After being booked into cells, Mr. Patel spoke with duty counsel at 12:24 a.m.
78At the outset of the interview conducted by TPS Constables Ilson and Essert at 1:13 a.m. on November 18, 2021, Mr. Patel confirmed that he had spoken with duty and counsel and re-asserted his right to speak with counsel of his choice. He provides two names. Constable Ilson advises Mr. Patel that the interview is being audio and video recorded. He is further advised that he is being interviewed by police officers. Constable Essert repeated the charges forming the basis for his arrest. He is again provided with rights to counsel. He is advised of his right to remain silent and is told that he is “not obliged to say anything in answer to the charge[s]”. He is further advised: “you don’t have to say anything if you don’t want to okay?” Mr. Patel indicates that he understands his rights.
79Once Mr. Patel indicates he wishes to speak with his lawyers of choice, Constables Ilson and Essert attempt to find out which lawyer Mr. Patel wanted to speak with first and in what order the lawyers should be contacted. Mr. Patel is then returned to his holding cell. At 2 a.m. Constable Ilson attempts to contact Mr. Weisner. He leaves a message for Mr. Weisner.
80During this interview, Mr. Patel’s responses and statements to the TPS officers (to the extent any were provided) are neither inculpatory nor exculpatory. Constable Ilson described their exchange as “small talk” as they waited for the return of Constable Essert who had left the interview room to contact Mr. Weisner. A single question is asked by Constable Ilson directly related to the Project Malibu transactions. He asks Mr. Patel: “what’s the story” about the guy he was arrested with (undercover officer Alias). To this question Mr. Patel responds: “I want to speak to my lawyer”.
81Although not required by law,7 the TPS officers held off questioning Mr. Patel until he had been afforded a second opportunity to speak with a lawyer of his choosing. The TPS officers did not continue their interview.
82Turning now to the interview conducted by the LPS officers during which Mr. Patel provided the statement which forms the subject matter of this voluntariness voir dire. Of critical relevance to the issue of voluntariness are the conditions at the time the statement was provided. The following conduct and responses of Mr. Patel support a finding that his will was not overborne and his statement voluntary:
(a) Mr. Patel was provided his secondary caution. He is asked whether during his many interactions with police officers since his arrest, he had been threatened or promised anything. In response, Mr. Patel unequivocally states “no”; and
(b) Mr. Patel was advised by Constable Morrison that he was under investigation for the murder of Lynda Marques. Constable Morrison explained to Mr. Patel that he could eventually be charged with first-degree murder and urged Mr. Patel to speak with counsel regarding his potential heightened jeopardy. Mr. Patel is escorted from the interview room and provided an opportunity to speak with duty counsel with respect to his increased jeopardy. However, Mr. Patel declined the opportunity to speak with duty counsel and was returned to the interview room. Notwithstanding the repeated urging of Constable Morrison, Mr. Patel refused to speak with a lawyer before continuing the interview, stating “I pretty know what they’re going to tell me”.
83After considering all of the evidence I find the Crown has proven beyond a reasonable doubt that Mr. Patel was not subject to coercive or oppressive circumstances at any time during or following his arrest, and that when he provided his statement to the LPS officers, his will was not overborne. He gave his responses to questions voluntarily after refusing to invoke his right to counsel notwithstanding his materially increased jeopardy and despite the significant encouragement and urging of Constable Morrison to speak with a lawyer. These circumstances were the antithesis of oppressive.
Operating Mind
84The operating mind requirement focuses on the accused’s state of mind at the time they speak with police, and not to the time of the offence, or the time of arrest. Statements made by an accused who did not have an operating mind are inadmissible in order to protect the rights of the accused and the fairness of the criminal justice system.8 Such statements are fundamentally unreliable.
85The leading authority on the “operating mind” requirement is R. v. Whittle.9 An accused will be found to have an operating mind if they possess a limited degree of cognitive ability to understand what they are saying and to comprehend that the evidence may be used against them. A very low threshold has been set in order to establish an operating mind. The operating mind requirement “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment”.10
86Like all of the other Oikle factors, the operating mind requirement is not a separate and discrete inquiry from the rest of the voluntariness analysis. The operating mind test must be considered alongside and together with all of the other factors to determine whether a statement is involuntary.11
87During the booking process and in response to a question from Sgt. Henry, Mr. Patel advised that he had consumed marijuana approximately 20 minutes prior to his arrest at 11:25 p.m. However, Mr. Patel displayed no visible signs of impairment during the booking process or hours later during his interview with officers Pavoni and Morrison.
88There was no evidence presented that would call into question Mr. Patel’s sobriety from the moment of his arrest to the conclusion of his interview with the LPS officers. All officers testifying on the voir dire observed Mr. Patel to be responsive to questions. He did not appear to be in distress or in need of medical attention. Mr. Patel advised of a heart problem. However, he had not been prescribed medication for the condition and at no time while in police custody did he complain of symptoms associated with any heart condition.
89Mr. Patel did not require questions to be repeated. During the booking process, Mr. Patel stated that he understood why he had been arrested; and, moreover, that he understood his rights to counsel.
90Officers Rhone, Gundert and Henry observed abrasions/redness on Mr. Patel’s face and forehead. None of these officers reported bleeding. During the booking process, Mr. Patel denied having any injuries. Mr. Patel was asked specifically about the abrasions to his forehead. He said he was unaware of any injury to his forehead or its cause. He advised that the injuries to his hands were a week old. Despite repeatedly expressing discomfort and requesting Constable Gundert to loosen his handcuffs while being transported to the station, when asked if he had any injuries during the booking process, Mr. Patel made no mention of any injuries to his wrists or hands caused by the handcuffs. I note that any force applied by the officers to Mr. Patel’s person at the time of his “takedown” and arrest occurred approximately three (3) hours prior to Mr. Patel’s statement to the LPS officers.
91Mr. Patel was offered food which respected his religious practices which he accepted and consumed. He was offered a jumpsuit for warmth. Detective Constable Jorge Hurtado described Mr. Patel as “sleepy and groggy” when he escorted him from his holding cell to the interview room with the LPS officers. However, as is evident from the video recording, Mr. Patel appeared alert and responsive when he arrived at the interview room.
92To make the inferences and arrive at the conclusions sought by defence counsel would require me to speculate as to Mr. Patel’s state of mind and ignore the evidence provided by the police witnesses and supported by the audio and video recordings of Mr. Patel’s interactions with police. The evidence belies any suggestion that Mr. Patel did not have an operating mind due to a head or other injury and/or the consumption of marijuana.
93The evidence clearly establishes that Mr. Patel understood his rights to counsel; understood his jeopardy; understood and appreciated the consequences of speaking with police and the risks associated with providing information to police. The video-recording of the interview speaks volumes. Mr. Patel does not appear confused; rather, he appears alert and is responsive to questions. He expressly states that he understands both his right to speak to a lawyer and his right to remain silent. His responses to questions demonstrate his understanding and exercise of his Charter rights.
94For the foregoing reasons, I find Crown counsel has proven beyond a reasonable doubt that Mr. Patel’s statement to LPS officers Pavoni and Morrison was voluntary.
2. The Charter Application
General Legal Principles
95Mr. Patel bears the onus of proof and must establish on a balance of probabilities that: (i) there has been a violation of his s. 10 Charter right(s); and (ii) the statement should be excluded pursuant to s. 24(2) of the Charter.
96Section 10(a) of the Charter provides that upon arrest or detention every person shall have the right to retain and instruct counsel without delay and shall be informed promptly of that right.
97To facilitate its objectives, s. 10(b) of the Charter obliges the police to advise or inform a detained person of their right to speak with counsel without delay and, if the detainee asserts or chooses to exercise that right, the police must provide the detainee with a reasonable opportunity to speak to counsel without delay.
98There is both an informational and implementational component to the right to counsel. The informational component requires the police to advise the detainee of their right to retain and instruct counsel without delay, and to advise the detainee of the existence of duty counsel and legal aid.
99The implementational component requires the police to provide a detainee with a reasonable opportunity to exercise the right to counsel without delay (if that right is asserted) and, at the same time, to refrain or “hold off” from eliciting evidence from a detainee, until they have had a reasonable opportunity to exercise this right. Both duties to inform and facilitate the right to counsel must be carried out by the police without delay.12
100The law is clear that a detainee has the right to be informed of their s. 10(b) rights in a meaningful and comprehensive way. However, police are not required to go to extreme measures in order to respect a person's s. 10(b) rights. The key question is whether a detainee had been advised of his/her rights in a meaningful, comprehensive manner.13
Nature of the Alleged Breach
101The applicant submits that to effectively understand and exercise his s. 10(b) Charter rights he was entitled to know the full extent of the charges he was facing and his jeopardy. The applicant argues that the investigative plan, in so far as it envisioned a delay in charging Mr. Patel with the project Malibu charges, was a “Charter-infringing ruse”. That is, the plan contemplated and required for its success the active and ongoing deception of Mr. Patel. Specifically, to succeed, the investigative plan required that Mr. Patel be “kept in the dark” regarding his true jeopardy. Defence argues that Mr. Patel’s true jeopardy involved the multiple Project Malibu charges.
102It is not disputed that Mr. Patel was not made aware of the Project Malibu charges until after he was interviewed by officers Pavoni and Morrison. More importantly, Mr. Patel was not made aware of the Project Malibu charges prior to speaking with duty counsel. As such, he argues that the active deception by the TPS officers nullified and rendered ineffective Mr. Patel’s implementational and informational rights to counsel.
103Mr. Patel says that the delay in charging him with the Project Malibu offences left him misinformed as to the reason for his detention and the full extent of the charges he was facing (jeopardy), in breach of his s. 10 Charter rights. Consequently, when he received advice from duty counsel such advice was not provided with respect to his true jeopardy and, therefore, was not meaningful. The applicant submits that to meaningfully exercise his Charter rights, required that he be informed of all charges, including the Project Malibu charges.
Failing to Charge the Applicant with the Project Malibu Charges at the time of his Arrest
104The Authorization was obtained by the LPS to allow undercover officer Alias to record his conversations with Mr. Patel while the two shared a cell following their arrest.
105As earlier noted in these reasons, the investigative plan was set out in detail in the ITO sworn in support of the Authorization. That is, what the LPS and TPS intended to do if the Authorization was granted was made known to the issuing justice. Specifically, subparagraphs 228 (h) through (m) of the ITO provided that undercover officer Alias would be jointly arrested with Mr. Patel; they would be placed together in a holding cell; and their conversations surreptitiously recorded.
106The ITO and the Authorization are presumed valid.14 Mr. Patel does not challenge the validity or sufficiency of the ITO pursuant to s. 8 of the Charter. He does not allege the ITO contains information, which is inaccurate, misleading and/or insufficient to support the issuance of the Authorization.
107Notwithstanding the presumptive validity of the ITO, the applicant challenges the lawfulness of the TPS decision to hold off arresting him on the Project Malibu charges in order to maintain DC Alias’ “cover”. He claims such conduct was deceitful and constitutes an intentional breach of his Charter rights. The applicant points to the fact that the decision not to charge him with all “arrestable” offences was not expressly stated in the ITO as part of the investigative plan. Moreover, the affiant of the ITO did not expressly state that Mr. Patel was “arrestable” for the Project Malibu charges.
108I do not share those views. Between paragraphs 155 and 197 of the ITO, the affiant sets out in detail each of the five (5) transactions comprising Project Malibu including the offences committed by Mr. Patel during the course of those transactions. I find it was unnecessary for the affiant to have stated the obvious. On a plain reading of the ITO, it may reasonably be inferred that (i) Mr. Patel was “arrestable” for the Project Malibu charges; and (ii) Mr. Patel could not be arrested for the Project Malibu charges at the same time as his arrest for the discharge firearm offences because to do so would expose the true identity of undercover officer Alias thereby undermining the objectives of the investigative plan and the purpose of the Authorization being sought.
109The TPS was transparent and forthcoming in its decision to hold off charging Mr. Patel with the Project Malibu offences. All police witnesses familiar with the investigative plan testified that at the briefings held to discuss the “takedown” and arrest of Mr. Patel on November 17th, they were informed that implementation of the investigative plan required that the integrity of the undercover operation be preserved and Constable Alias’ true identity not disclosed. For this reason, TPS officers were instructed that Mr. Patel would not be arrested for the Project Malibu charges. The TPS intended to continue Project Malibu in the event Mr. Patel was released from custody following his arrest on November 17, 2021. The evidence of the TPS officers is supported by subparagraph 228(n) of the ITO which explicitly provided that the undercover operation may not end the night of November 17, 2021. The plan contemplated that Mr. Patel (and undercover officer Alias) might be released from custody following their arrest which would then allow Project Malibu to continue.
110Ultimately, Mr. Patel was arrested and charged with the offences arising out of the Project Malibu transactions. These charges were laid on November 18, 2021 at some time following Mr. Patel’s interview with Constables Pavoni and Morrison. The informations were formally laid mid-afternoon on November 18th. The only inference supported by the evidence adduced on the applications is that the TPS formed the intention to arrest and charge Mr. Patel with the Project Malibu offences after, and not before, Mr. Patel’s interview with London police.
111I find there was no evidence of an intent to deceive Mr. Patel of his true jeopardy. Furthermore, the decision not to charge Mr. Patel with the Project Malibu offences at the time of his arrest for unlawful discharge of firearm was implicitly court-sanctioned by the issuance of the Authorization as part of the investigative plan. Additionally, it was within the discretion and authority of the TPS to withhold charging Mr. Patel with the Project Malibu charges. At the time he was provided his rights to counsel, he was fully apprised of the extent of his jeopardy at that time. There is no evidence that Mr. Patel did not receive meaningful and full-informed rights to counsel and caution when he was eventually charged with the Project Malibu charges later in the day on November 18, 2021.
112Therefore, I find the applicant has not established on a balance of probabilities that his statement was obtained in a manner which infringed his s. 10 Charter rights.
Section 24(2)
113Having found that Mr. Patel’s statement was not obtained, directly or indirectly from a breach of his Charter rights, it is unnecessary to consider the exclusion of the statement under s. 24(2) of the Charter. However for completeness I will now consider whether had a Charter breach been identified, the statement should be excluded under s. 24(2) of the Charter.
114Section 24(2) of the Charter requires that evidence obtained in a manner that infringes the rights of an accused under the Charter be excluded from the trial if it is established that “having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”. The burden is on the party seeking exclusion to persuade the court that this is the case.15
115When considering an application for exclusion of evidence, the Court “must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct); (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little); and (3) society's interest in the adjudication of the case on its merits”16
The Seriousness of the Charter-Infringing State Conduct
116“Good faith” on the part of the police reduces the need for the Court to disassociate itself from the police conduct. That portion of the investigative plan that was implemented on November 17, 2021 was fully disclosed to the Court in advance and the Authorization was issued on the basis that the investigative plan required the Authorization for its implementation. It was only once the Authorization was obtained that the TPS and the LPS took the actions now challenged by Mr. Patel.
117If there was a Charter breach in failing to arrest the applicant for and advise him of the Project Malibu charges, the police acted in good faith by seeking and obtaining Court- approval of the investigative plan. Consequently, the conduct falls on the less serious end of the spectrum which favours its inclusion as evidence at trial.
The Impact of the Breach on the Charter-protected Interests of the Accused
118The applicant was given his right to counsel and cautioned in respect of all of the offences for which he was arrested. He exercised his right to counsel shortly after his arrival at 53 Division. He spoke with duty counsel immediately after the booking process was completed. During the attempted interview by TPS officers regarding the discharge of firearm incident on October 18, 2021, Mr. Patel was re-advised of his right to counsel and cautioned. The applicant clearly understood his right to counsel and how to invoke/implement it because as soon as he was asked about undercover officer Alias, Mr. Patel asked to speak to his lawyer. Although having no legal obligation to do so, the TPS officers offered to and did facilitate a second call to Mr. Patel’s lawyer of choice and concluded their interview of Mr. Patel.
119During the interview conducted by the LPS officers, DC Morrison repeatedly advised Mr. Patel of his significantly increased jeopardy arising from him being implicated in the murder of Lynda Marques. Despite Mr. Patel declining to speak with counsel, DC Morrison insisted that he contact counsel given the severity of the charge (first degree murder) he was potentially facing. DC Morrison told the accused that he would be put in contact with lawyer before the interview could continue. Notwithstanding the persistent efforts of DC Morrison, Mr. Patel chose not to speak with counsel and, when returned to the interview room, he reiterated that he did not need or want legal advice.
120During the interview, DC Morrison deliberately restricted his questions to the murder investigation, and expressly advised Mr. Patel that he did not want to speak about the Toronto matters and his questions would relate only to the murder of Ms. Marques. None of DC Morrison’s questions touched upon any issue relating to the Project Malibu charges or the discharge firearm incident. Furthermore, none of the responses of Mr. Patel produced inculpatory or any evidence probative of the Project Malibu charges.
121I find that Mr. Patel suffered no prejudice from any Charter breach arising from the failure of the TPS to arrest and provide rights to counsel to Mr. Patel with respect to the Project Malibu charges. This factor favours inclusion of the statement as evidence at trial.
Society’s Interest in the Adjudication on the Merits
122Society generally expects that criminal charges will be determined on their merits. In Grant, the Supreme Court instructed that this third factor of the test for exclusion of evidence asks, “whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence, or by its exclusion”.17
123One of the factors relevant to the Court’s consideration under this portion of the test is the reliability of the evidence that the defence seeks to exclude. The Court concluded in Grant that “[t]he admission of unreliable evidence serves neither the accused's interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute”.18
124On the evidence before this Court, I find that the reliability of the statement to Constables Morrison and Pavoni was not undermined by the circumstances of the accused’s arrest and his rights to counsel on the Toronto charges. It was made clear to the accused on at least two separate occasions that his statement was being taken separate and independent from any Toronto charges. DC Morrison was careful to restrict the interview to only matters concerning the murder of Lynda Marques. The accused’s jeopardy in the murder investigation – the highest jeopardy in Canadian law – was carefully explained to him. DC Morrison made every effort to encourage the accused to invoke and exercise his right to counsel in light of his significant jeopardy. Despite DC Morrison’s efforts, Mr. Patel declined to invoke and exercise his right to counsel. Further, Mr. Patel had already been advised of his right to counsel and had exercised his right to counsel in respect of the Toronto charges for which he had been arrested. Any breach in this case did not undermine the reliability of the utterances that the accused made to DC Morrison in relation to the murder of Lynda Marques.
125The final factor also requires me to look at the type and nature of the allegations and the importance of the evidence the defence seeks to exclude relative to the Crown’s case as a whole. Mr. Patel is charged with the most serious of offences under the Code – first-degree murder. The statement may play a pivotal role for the Crown in undermining the credibility of the applicant although its exclusion will not compromise the case for the Crown. I am mindful of the need to balance this strong societal interest with the long-term repute of the administration of justice when evidence obtained by a Charter breach is admitted at trial. However, in the circumstances of this case, this factor does not result in a close call. No bright line was crossed. This factor strongly favours admission.
126The onus is on the applicant to establish that the Grant factors combine to warrant the exclusion of evidence and not the Crown to establish that they do not. No evidence was presented to show the scope of the Crown’s case which might permit the Court to assess the importance of the statement relative to the whole of the evidence in support of the Crown’s case against Mr. Patel. I find that the applicant has not met its burden for exclusion of the statement pursuant to this third Grant factor.
127After weighing and balancing the above three Grant factors, I conclude that the outcome favours admission. Any breach of Mr. Patel’s Charter rights was minor and founded in good faith. Similarly, any impact on the applicant’s Charter rights was negligible. The statement was audio and video recorded contemporaneous with the interview and constitutes reliable evidence. No unfairness to the applicant would result from the admission of his statement at trial.
Conclusion
128For the foregoing reasons, I find Mr. Patel’s statement/utterances made during the interview conducted by Constable Pavoni and Morrison to be voluntary and admissible evidence at trial.
129Mr. Patel’s Charter application is hereby dismissed.
Justice A. K. Mitchell
Date: May 2, 2025
Footnotes
- R. v. Oickle, [2000] 2 S.C.R .3 (“Oikle”), at para. 47.
- Ibid, at paras. 22, 47, 68, and 71.
- Ibid, at para. 42.
- R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 (“Singh), at para. 36.
- 2022 SCC 35, at para. 68.
- 2022 SCC 54 (“Beaver”).
- See R. v. Sinclair, 2008 BCCA 127, at paras. 40 and 65; aff’d R. v. Sinclair, 2010 SCC 35.
- Oickle, supra, at para. 69.
- 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914 (“Whittle”).
- Ibid. at para. 37; See also Oickle, supra, para. 63.
- Oickle, supra, at para. 63.
- R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495 at para. 23-36; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 at paras. 38-42; and R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173 at paras. 191-192.
- R. v. Polusmiak, 2022 PECA 8 at para 25; and R. v. Nagalingam, 2020 ONSC 4519, at para. 7.
- R. v. Collins, 1989 CanLII 264 (ON CA), [1989] O.J. No. 488 (C.A.) at para. 30.
- R. v. Vu, 2013 SCC 60, at para 68.
- R. v. Grant, 2009 SCC 32 (“Grant”) at para. 71.
- Grant, supra, at para. 79.
- Grant, supra, at para. 81.