** Unedited **

** Unedited **

Indexed as:
R. v. Law

Between
Regina, and
Joseph Law

[1997] O.J. No. 2642

Ontario Court of Justice (Provincial Division)
Etobicoke, Ontario
Cohen Prov. J.

June 24, 1997.
(25 pp.)

Civil rights — Right to counsel — Denial of right, remedies — Exclusion of evidence — Derivative evidence, what constitutes.

Motion for exclusion of evidence. The applicant accused was charged with robbery, having his face mask with intent, assault with a weapon and carrying a knife for the purpose of committing a robbery. During the investigation of the robbery, the accused admitted to the investigating police officer his involvement in the robbery and also stated that his friend, BF, was involved. He was arrested and only then was he advised of his right to counsel. Upon being informed that the accused had been arrested and had told the police about him, BF made some inculpatory statement to the police and was also arrested and charged. Six months after his arrest, BF decided to co-operate with the police and provided a videotaped statement to the police implicating the accused. He subsequently pleaded guilty as an accessory after the fact to the robbery and received a disposition of 18 months probation. The guilty plea and the disposition were the consequence of a plea bargain which required BF to provide the statement implicating the accused. In an earlier proceeding, the court ruled that the accused's right to counsel was violated and as a result, utterances made by the accused at the time of his arrest were excluded. The issue on this motion was whether the evidence of BF was derivative of the excluded statement, and ought to be excluded as well.

HELD: Motion allowed. The testimony of the accused's friend was derivative of the conscripted evidence of the accused. All of his actions were determined by his belief that he would be found guilty on the strength of the accused's statements. He would not have provided a statement had it not been for the statement of the accused. Admitting such evidence would render the trial unfair.

Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982, ss. 10(b), 24(2).
Young Offenders Act, s. 56.

Counsel:

D. Gunn, for the Crown.
R. Rusonik, for the applicant.

¶ 1 COHEN PROV. J.:— This is a ruling on a motion brought by the accused for an order pursuant to section 24(2) of the charter excluding certain evidence on the grounds that she accused's rights under section 10(b) of the Charter were breached.

¶ 2 The accused is before the, Court on charges of robbery, having his face masked with intent to commit an indictable offence, committing an assault with a weapon, to wit a knife, and carrying a knife for the purpose of committing the offence of robbery. The, evidence, which the defence seeks to have excluded, consists of utterances made by the accused and evidence purportedly derived from those utterances, including the evidence of B.F. The trial of this matter has proceeded before me and I have already ruled that the rights of the accused under section 10(b) of the Charter were infringed. Pursuant to section 24(2), I have excluded the utterances made by the accused at the time of the arrest. The ruling today is on the question of whether the evidence of B.F. is derivative of the excluded statement, and ought to be excluded as well.

¶ 3 The incident which gave rise to the charges before the Court occurred on June 8, 1996. On that date the witness Antonio Ramos was working behind the counter of a convenience store owned by his girlfriend's parents. A young man entered the store wearing dark clothes, with his face masked by a stocking, and carrying a knife and a black bag. The young man brandished the knife and demanded money. The witness refused and after a confrontation, in which the witness suffered a cut to his hand, the young man fled the store. The witness observed the young man run across the street and disappear behind a building.

¶ 4 Several police officers, including P.C. Boyle, the officer in charge of the investigation, attended at the convenience store shortly after the incident. The officers investigated the escape route observed by the witness, and located a wallet next to a hole in a fence. The wallet was dry although the ground was wet, leading the officers to conclude it had been recently dropped. The wallet was found to contain a variety of cards identifying the accused as its owner. The officers then strongly suspected the accused of perpetrating the robbery and attended the address shown on, one of the cards. There they spoke to the, father of the accused.

¶ 5 The accused's father advised the officers that the accused was not present, and that he had gone out earlier in the day with B.F. He told the officers that B.F. was a friend of the accused who was experiencing family problems, and had been staying at the their home for several weeks. At the conclusion of this conversation P.C. Boyle then had some suspicion that B.F. might have been involved in the robbery.

¶ 6 The father contacted the accused's mother and she arrived at the house shortly thereafter with the accused. The evidence of all witnesses does not differ significantly with regard to what occurred next. When the accused entered the house neither he or his mother knew the police were there. The father was in the kitchen at the furthest end of a hallway that led from the entrance. The mother was asked by the police to go back to the kitchen. While she proceeded there, the accused was "ushered to the side" and circled by 3 or 4 police officers in civilian clothes. He was unable to see his mother. The accused was 14 years of age at the time and a student. He had never been charged or arrested and had no youth court record. He was nervous and shaking and did not make eye contact with the officers. One of the officers held the accused's wallet out towards him and said "Do you know why we're here?" The accused testified that he felt intimidated by the police officers and believed there was a rule requiring him to answer their questions. He testified that he wanted to speak to his parents but was given no chance to speak to anyone. A conversation followed in which the accused admitted his involvement in the robbery. During the course of this conversation, the accused said "B. was with me." B. is B.F. The accused was not advised of his right to counsel under section 10(b) of the Charter, nor of his right to remain silent, nor of his rights under section 56 of the Young offenders Act. The accused was arrested and only then was he advised of his right to counsel.

¶ 7 The mother testified that she was told to "stay way" from the accused. From where she was located she was unable to see her son. She was very agitated and upset and asked why she could not speak to the accused. She had never dealt with the police nor had the police been to her house before. After the accused made his statement to the police, Sgt. Foster explained to the accused's parents that the accused would be taken to 11 division. He also advised them that it appeared that B.F. was involved in the commission of the offence. Sgt. Foster wrote the phone number for 11 Division down for the parents and told them they may want to consider calling a lawyer.

¶ 8 When B.F. returned to the accused's home that night he was told that the accused had been arrested, and that the accused had told the police about him. Later that evening two officers attended at the home of B.F. where they spoke to B.F.'s mother. B.F. came out and began putting on his shoes. One of the officers asked B.F. where the knife, and balaclava were, and he replied "It wasn't a balaclava, it was a stocking." B.F. pointed to his backpack and the officer then seized a knife and stocking. After this conversation B.F., was placed under arrest and cautioned.

¶ 9 The accused and B.F. were jointly charged with robbery. The accused was also charged, with the other offences now before the court. B.F. was held for a show cause hearing and subsequently released from detention. Shortly after his release, B.F. and his mother attended at 11 Division. In front of an officer there, B.F.'s mother instructed her son to turn over a navy blue backpack. B.F. stated that everything was in the main part, and inside the backpack the officer located a black T-shirt, a green shirt, and a leather and fabric work glove. On January 26, 1997, B.F. provided a videotaped statement to the police implicating the accused. B.F. subsequently pled guilty as an accessory after the fact to the robbery and received a disposition of 18 months probation. The guilty plea and disposition were the consequence of a plea bargain which required B.F. to provide the statement incriminating the accused. Subject to my ruling on the Charter motion, B.F. has also testified on this trial.

¶ 10 For the purposes of my ruling today, I have found the following facts:

From the time he was arrested by the police B.F. clearly believed that the accused had told the police he was involved in the robbery. The accused's parents had told him that the accused had been arrested, that he had implicated B.F., and that the police would be coming to his house to arrest him. After his third or fourth appearance in Court, B.F. received disclosure of the Crown's case, including police and witness statements. The disclosure included the police notes of their interview with the accused and confirmed B.F. in his belief that the accused had "ratted" on him. As the case progressed he continued to believe that the accused's statement was the evidence, and the only evidence implicating him.

¶ 11 B.F. was 15 at the time of the offence and had a prior finding of guilt for assault. He also had been found guilty on September 9, 1996, of theft under. On the occasion of his other encounters with the justice system B.F. exercised his right to remain silent, as he initially did in the case at bar. In this case however, he decided some 6 months after his arrest, to co-operate with the authorities and provide the videotaped statement in which he admitted his own responsibility and inculpated the accused. He testified that he did so for several reasons.

¶ 12 The principle reason B.F. decided to provide the statement was because a deal was being struck with the police that would result in his not having to serve a custodial sentence. B.F.'s secondary reason for providing the statement was that his parents advised him to be co-operative. With respect to the advice of his parents, B.F. agreed with the suggestion that his parents had given him this advice because of the strength of the Crown's case. With regard to the plea bargain, it is clear from the B.F.'s testimony that he was involved in the planning of the robbery. He testified that both he and the accused had the idea to rob the store. He suggested to the accused that his backpack be used because it was a very common bag. He waited nearby while the accused went to the store. It was only after the failed robbery that he and the accused parted. Thus, although B.F. pled guilty to being an accessory after the fact, in fact he was a party to the entire offence. Having regard to his belief that he would be found guilty on the strength of the accused's admissions, the plea bargain was a good one for B.F.

¶ 13 I have considered all of the evidence, and in particular the evidence of B.F. which was uncontradicted in cross-examination or by way of other evidence, that all of his actions were determined by this belief as to the negative consequences for him of the original statement of the accused. Although B.F. testified that it was his choice to provide a statement, I find that he would not have done so were it not for the statement of the accused.

¶ 14 Section 24(2) of the Charter provides as follows:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded 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.

¶ 15 In an application under section 24(2), the court must determine first, whether the evidence was "obtained in a manner" that infringed a right under the Charter. If the Court so finds, then the Court must determine whether the evidence ought to be excluded on the basis that its admission would bring the administration of justice into disrepute. I turn therefore to the threshold issue: Was the evidence of B.F. "obtained in a manner" that infringed a Charter right?

¶ 16 In the case of Regina v. Goldhart (1996), 107 C.C.C. (3d) 481 (S.C.C.), the Court addressed the question of whether the viva voce evidence of a witness who was arrested following an illegal search is subject to a section 24(2) analysis. In that case Mayer, one of three accused persons charged with possession and cultivation of narcotics, underwent a religious conversion between the time of his arrest and the date of the preliminary hearing. Although he was correctly advised by his lawyer that the fruits of an illegal police search would likely be excluded at trial, with the result that his conviction was unlikely, Mayer insisted on pleading guilty and testifying. The issue for the Court was whether Mayer's evidence should be excluded on the grounds that it had been derived from an illegal search and seizure. As in the case at bar, the threshold question was whether the viva voce testimony of the witness was obtained "in a manner" that violated the Charter so as to attract the provisions of section 24, since only evidence obtained in such a manner can be subject to exclusion. Following R. v. Therens (1985), 18 C.C.C. (3d) 481 (S.C.C.) and R. v. Strachan (1988), 46 C.C.C. (3d) 479 (S.C.C.), Mr. Justice Sopinka held that in order to determine whether section 24(2) was engaged, the court must examine the entire relationship between the breach and the subsequently discovered evidence to determine whether a causal or a temporal link exists. At page 492 of the judgment, he quoted the following passage from the decision of Dickson C.J.C. in R. v. Strachan:

In my view, all the pitfalls of causation may be avoided by adopting an approach that focuses on the entire chain of events during which the Charter violation occurred and the evidence was obtained. Accordingly the first inquiry under section 24(2) would be to determine whether a Charter violation occurred in the course of obtaining the evidence. A temporal link between the infringement of the Charter and the discovery of the evidence figures prominently in this assessment, particularly where the Charter violation and the discovery of the evidence occur in the course of a single transaction. The presence of a temporal connection is not, however, determinative. Situations will arise where evidence, though obtained following the breach of a Charter right, will be too remote from the violation to be "obtained in a manner" that infringed the Charter. In my view, these situations should be dealt with on a case by case basis. There can be no hard and fast rule for determining when evidence obtained following the infringement of a Charter right becomes too remote.

¶ 17 Mr. Justice Sopinka went on to conclude that the "relative remoteness" of both the causal connection and the temporal link between the Charter breach and the impugned evidence must be examined. At page 495 of the judgment he states the following:

"If both the temporal connection and the causal connection are tenuous, the court may very well conclude that the evidence was not obtained in a manner that infringes a right or freedom under the Charter. On the other hand the temporal connection may be so strong that the Charter breach is an integral part of a single transaction. In that case, a causal connection that is weak or even absent will be of no importance. Once the principles of law are defined, the strength of the connection between the evidence obtained and the Charter breach is a question of fact." (p. 495)

¶ 18 I am asked in the case at bar to find that there exists a causal relationship between the breach of the section 10(b) Charter rights of the accused, and the evidence of B.F. In this connection some further comments of Mr. Justice Sopinka at Page 496 of the judgment in the Goldhart case are apposite:

A distinction must be made between discovery of a person who is arrested and charged with an offence and the evidence subsequently volunteered by that person. The discovery of the person cannot simply be equated with securing evidence from that person which is favourable to the Crown. The person charged has the right to remain silent and in practice will usually exercise it on the advice of counsel. The prosecution has no assurance, therefore, that the person will provide any information let alone sworn testimony that is favourable to the Crown ...

¶ 19 Following this logic, Sopinka J. held that the existence of the temporal link between the arrest and the illegal search in Goldhart was of "virtually no consequence", since,

"In order to find a temporal link, the pertinent event is the decision of Mayer to co-operate with the Crown and testify, not his arrest."

¶ 20 On the facts of that case he found that the temporal link between the illegal search and the testimony was "greatly weakened" by "the intervening events of Mayer's voluntary decision to cooperate with the police, to plead guilty, and to testify." (p. 496) Additionally, he held that the "application of the causal connection factor, was to the same effect." As a result, in Goldhart, Sopinka, J. concluded that the "nexus between the impugned evidence and the Charter breach is too remote", and hence that the evidence of Mayer was not obtained in a manner that infringed or denied a Charter right.

¶ 21 I have applied the reasoning of Sopinka, J. to the case at bar. The "pertinent event", at least with respect to the utterances of B.F. which implicate the accused, is the decision of B.F. to provide a statement to the police in January, 1997. On the facts before me, however, I come to a different conclusion than that of the Court in Goldhart. My reasons are as follows:

In Goldhart there was a significant intervening event which disrupted the link of causation between the Charter breach and the impugned evidence, and that was the religious conversion of Mayer. It was this conversion that led to his decision to co-operate with the authorities, notwithstanding the advice he had received from his counsel that it was possible the evidence yielded by the illegal search could be excluded at trial, and that he could be acquitted. In the case at bar there was no analogous intervening event. By the time B.F. arrived home on the evening in question, he already knew that he had been implicated by the accused. He knew he had was charged directly as a result of the accused's statement, and throughout the proceedings he continued to believe that the evidence which would result in his being found guilty of robbery was that statement. B.F.'s decision to enter into the plea bargain, and to provide the videotaped statement flowed directly from this belief. Unlike Mayer in the Goldhart case, there is no evidence that his counsel advised him about the weakness of the Crown's case or about the possibility that the statement of the accused which implicated him might be excluded. The statement obtained in breach of the Charter initiated the chain of events, and, while the evidence of B.F. was obtained well after the link, I have no evidence that any events occurred to disrupt the causal connection. Insofar as B.F. made certain statements and provided certain physical evidence more proximate to the breach, I find that evidence as well was both causally and, temporally connected to the Charter breach.

¶ 22 Secondly, in comparing the facts in Goldhart, to those in the case at bar, I find it important to distinguish between the voluntary decision of an adult, fully informed as to the consequences of his decisions, and the purported exercise of a voluntary decision by a fifteen year old with limited experience with the world or the justice system, who believes his fate has been sealed by the actions of his friend, who's parents are advising him to cooperate with the authorities, and who fears he is facing a term in jail.

¶ 23 Thirdly, in my view it is not inconsistent with the decision of Sopinka, J. in Goldhart, for the Court to adopt a "generous approach" in deciding questions of fact at the initial or threshold stage of the Charter analysis, particularly in cases where young persons are involved. For this proposition I rely on the case of Regina v. Bartle (1994), 92 C.C.C. (3d) 289, in which Mr. Justice Lamer described the threshold analysis in the following way (at p. 313):

Under the first threshold requirement, there must be some connection or relationship between the infringement of the right or freedom in question and the obtaining of the evidence which is sought to be excluded. However, a strict causal links between the Charter infringement and the discovery of the evidence is not required: Therens, per LeDain J., at p. 509; Strachan, per Dixon C.J.C. at pp. 494-9, and Lamer J. (as he then was) at p. 501, and Brydges, at pp. 345-6. Generally speaking, so long as it is not too remotely connected with the violation, all the evidence obtained as part of the "chain of events" involving the Charter breach will fall within the scope of s. 24(2). This means that in the initial inquiry under s. 24(2) as to whether the evidence has been "obtained in a manner that infringed or denied" Charter rights, the Courts should take a generous approach.

¶ 24 The reason the Court must adopt such an approach is summarized in the words of Mr. Justice LeDain in the Therens decision: [the Court must take the view which]

... gives adequate recognition to the intrinsic harm that is caused by a violation of a Charter right or freedom apart from its bearing on the obtaining of evidence.

¶ 25 Insofar as young people are concerned, the, Young Offenders Act provides at Section 3(e) that:

... young persons have rights and freedoms in their own right, including those stated in the Canadian Charter of Rights and Freedoms ... and young persons should have special guarantees of their rights and freedoms;

¶ 26 This section does not only declares the application of the Charter to the youth justice system, which, as Mr. Justice Osborne states in R. v. M.(G.C.) (1991), 65 C.C.C. (3d) 232 (Ont. C.A.), is "so as a matter of general principle." Section 3(e) recognizes the special needs of young people arising from their immaturity and vulnerability, and casts an onus on the Court to be especially vigilant to claims that their charter rights have been infringed. Thus I find that approaching the factual question of "relative remoteness" with a "generous view", is not inconsistent with the reasoning in Goldhart, is consonant with the thrust of the cases cited in Goldhart, and is mandated by the principles of the Young Offenders Act.

¶ 27 For all of these reasons I find that the evidence in question was obtained in a manner which infringed a right under the Charter. Having so found, it remains for me to determine whether it has been established that the evidence should be, excluded.

¶ 28 In Regina v. Collins (1987), 33 C.C.C. (3d) 1 (S.C.C.), the Supreme Court of Canada set out the factors the court must address in determining whether evidence should be excluded pursuant to section 24(2) of the Charter. These factors relate to the fairness of the trial, the seriousness of the Charter violation, and the possibility that the administration of justice could be brought into disrepute by excluding the evidence even though it was obtained in violation of the Charter. In the case of Regina v. Stillman, [1997] 1 S.C.R. 607, a decision of the Supreme Court of Canada rendered March 20, 1997, Mr. Justice Cory observed that of the three factors, trial fairness was of "fundamental importance". Thus, he stated,

"If, after careful consideration, it is determined that the admission of evidence obtained in violation of a Charter right would render a trial unfair then the evidence must be excluded without consideration of the other Collins factors."

¶ 29 In the Stillman case Mr. Justice Corey set out the procedure for the Court to follow in addressing this primary and fundamental question. As a first step in the trial fairness analysis, the Court must determine whether the evidence at issue is "conscriptive" or "non-conscriptive". If the accused was compelled to participate in the creation or discovery of the evidence, the evidence will be classified as conscriptive. If "the evidence existed independently of the Charter breach in a form useable by the State", the evidence will be classified as non-conscriptive.

¶ 30 In Stillman, Mr. Justice Corey described derivative evidence as a "subset" of conscriptive evidence. Derivative evidence is evidence that is discovered as a result of the accused's having been conscripted against himself. In the usual case the accused provides an inculpatory statement, which then leads to the discovery of other evidence. Thus in determining whether the impugned evidence in this case is derivative evidence, I must once again examine the chain of events leading to its discovery, and the relationship of the evidence obtained to the Charter breach.

¶ 31 In the case at bar, I have found that the police obtained an inculpatory statement from the accused following a violation of his right to counsel. The statement of the accused is conscriptive evidence. I have found a chain of causation leading directly from the statement, to the decision of B.F. to provide a statement implicating the accused. I am asked to find that utterances and testimony of B.F. are derivative of evidence obtained in beach of the Charter. Assuming the view, of the Court may be less "generous", at this stage of the inquiry, I nonetheless find on the facts that the evidence of B.F. is derivative of the statement of the accused.

¶ 32 Having found the impugned evidence to be of a conscriptive nature does not end the inquiry. In accordance with Stillman, the onus now falls on the Crown to demonstrate, on a balance of probabilities, that the evidence would have been discoverable by non-prescriptive means. If the Crown fails to so satisfy the Court, then as a general rule, the evidence is to be excluded. If the Crown is successful, then its admission will generally not render the trial unfair and the Court must proceed to consider the seriousness of the Charter breach and the effect of exclusion on the administration of justice.

¶ 33 In the Stillman decision, Mr. Justice Corey points out that there are two principal bases upon which it could be demonstrated that the evidence would have been discoverable by non-conscriptive means, the first being where an independent source of the evidence exists, and the second where the discovery of the evidence was inevitable. In his words, "... Where an alternative, non-conscriptive means exists and the Crown has established on a balance of probabilities that the police would have availed themselves of it", the admission of the evidence will not affect the fairness of the trial. In this case there is no independent source of the evidence, the question is whether the discovery of the evidence was inevitable. Has the Crown met its burden in the case at bar?

¶ 34 The evidence establishes that the accused's father advised the police that the accused had gone out with B.F. earlier in the day. The accused was already a suspect. When P.C. Boyle received this information, he suspected two people were involved in the offence, the second being B.F. There can be no doubt that the officers would have proceeded to interview B.F. irrespective of the statement obtained from the accused. Was the discovery of the evidence therefore inevitable?

¶ 35 I do not find, on the evidence before me, that the Crown has established, on a balance of probabilities, that the discovery of the evidence was inevitable. Here again I follow the reasoning of Mr. Justice Sopinka in Goldhart. The "pertinent event" in this case is the decision of B.F. to cooperate with the police and provide the videotaped statement, not his arrest. It was not inevitable that B.F. would make a statement. In fact, he relied on his right to silence for six months and made no statement. When he did make the statement, the only evidence before me is that he did so because of his knowledge and belief that the accused had made the statement, confirmed by the disclosure, and based on his expectation that he would be found guilty as a result. Certainly I cannot speculate as to the possibility of other events that might have made B.F.'s co-operation with the authorities inevitable.

¶ 36 The burden is on the crown to demonstrate that the impugned evidence could have been obtained without the participation of the accused. It has failed to do so. I recognize that in this case the accused is charged with very serious offences. Nonetheless, as Mr. Justice Iacobucci stated in Regina v. Burlingham, [1995] 2 S.C.R. 206,

"... we should never lose sight of the fact, that even a person accused of the most heinous crimes and no matter the likelihood that he actually committed those crimes, is entitled to the full protection of the Charter. Shortcutting [sic] or short-circuiting those rights affects not only the accused, but also the, entire reputation of the criminal justice system."

¶ 37 It is my finding that the testimony of B.F. is derivative of the conscripted evidence of the accused. I see no reason to depart from the general rule that such evidence will render the trial unfair and that it ought to be excluded. In circumstances where trial fairness is affected it is not necessary to consider the seriousness of the violation or the repute upon the administration of justice. The application of the accused is granted.

¶ 38 I wish to make one final comment. The motion for the exclusion of the evidence is not confined to the utterances of B.F. in his statement and at trial. With respect to the utterances of B.F. made prior to his arrest and the evidence obtained at his house at that time, the temporal link is very strong and both the findings and the rulings I have already made apply. I find in addition that B.F. was not advised of his right to counsel under the Charter, nor his rights under section 56 of the Young Offenders Act, prior to the officer's asking him where the knife and the Balaclava were. While the question was reasonable, in view of the evidence regarding the commission of the offence, the response was obtained in breach of B.F.'s section 10(b) rights. Although argument was not made on this point, having regard to all of the circumstances in addition to the findings I have already made, I find that the evidence was obtained in a manner which infringed the right to retain and instruct counsel without delay and to be informed of that right, and the utterance and the and the physical evidence obtained thereupon will be excluded.

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