This week’s top three summaries: R v Corner, 2023 ONCA 509: #detention & police interview, R v Kahsai, 2023 SCC 20: #amicus, and R v Wournell, 2023 NSCA 53: CSO for #guns, IRCA
This week’s top case deals with detention and statements by the accused. For great general reference on the law of evidence, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
MODERN CRIMINAL EVIDENCE
By Matthew Gourlay, Brock Jones, Renee Pomerance, Glen Crisp & Jill D. Makepeace
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R v Corner, 2023 ONCA 509
[July 27, 2023] Detention: Police Station Interviews [Reasons by Doherty JA with K Feldman and G Trotter concurring]
AUTHOR’S NOTE: Statements given in police stations have recently received attention by appellant courts including the SCC. This decision is a positive development in the recognition that “witness” status in the eyes of the police doesn’t necessarily line up with an objective assessment of the person’s detention. Control over the movements and property of the “witness” is key. Much of commentary in this case can be applied to other cases of interviews that turn into detention. The underlying picture here, as in most such cases, appears to be an either reckless indifference by the interviewer to the facts known to police or an intentional obfuscation of the actual status of the accused. When looked at in full context it is obvious that most police station interviews are very conducive to a finding of detention but for deliberate efforts by police to let the person know they are free to move about and free to leave.
OVERVIEW
[1] The appellant, a drug dealer, shot and killed his friend and drug dealing partner, Shabir Niazi. The shooting occurred in the late afternoon of February 19, 2014, in the garage of the home of the appellant’s parents. The appellant lived with his parents.
[2] In the minutes, hours, days, and weeks that followed the homicide, the appellant told a friend, the 9-1-1 operator, other friends, family members, family members of Mr. Niazi, and several police officers, that Mr. Niazi had been shot and killed during a “drug rip off”. The appellant told different versions of this story, some more detailed than others. In essence, he indicated that several men had burst into the garage intent upon stealing the marihuana that he and Mr. Niazi stored there. The robbers pistol whipped the appellant and shot and killed Mr. Niazi before fleeing the scene. I will refer to the various versions of this narrative as the “Robbery Story”. Not only did the appellant repeatedly tell the Robbery Story, but on February 26, 2014, seven days after the homicide, the appellant placed an anonymous call to the Crime Stoppers tip line, reporting that he had seen four men fleeing the scene of the homicide.
3] Within days of the homicide, the police located the gun used to kill Mr. Niazi. The appellant had hidden the gun in a wooded area near his home, along with the sweater that he was wearing at the time of the shooting.
[4] By the time of trial, the appellant had abandoned the Robbery Story. As he recalled the events at trial, he had shot and killed Mr. Niazi in self-defence….
[5] The autopsy revealed that Mr. Niazi was hit with at least eight shots. Three of the bullets entered his head, one entered from the back of his head and travelled through the brain. A fourth bullet went through Mr. Niazi’s heart.
[6] The appellant explained that he repeatedly told the false Robbery Story because he feared retaliation from Mr. Niazi’s family, if he admitted killing Mr. Niazi.
[7] …For the reasons that follow, I would hold that the trial judge erred in admitting some of the statements made by the appellant to the police. I would allow the appeal and direct a new trial.
THE CONVICTION APPEAL
- Did the trial judge err in admitting the appellant’s statements to the police made on February 19, 2014, the day of the homicide, and on March 1, 2014, the day of the appellant’s arrest?
C. The admissibility of the appellant’s statements
(i) Overview
[44] At trial, the Crown tendered statements made by the appellant to police officers on February 19, the day of the homicide, and on March 1-2, after the appellant’s arrest on the murder charge. The statements made by the appellant all repeated, with varying levels of detail, the Robbery Story that the appellant had told the 9-1-1 operator, his friends, family members, and family members of Mr. Niazi. In none of the statements did the appellant admit any responsibility for Mr. Niazi’s death, suggest that he had been assaulted by Mr. Niazi, or that he killed Mr. Niazi in self-defence.
[45] In his evidence, the appellant indicated that the Robbery Story was false. He had shot and killed Mr. Niazi in self-defence. The Crown argued that the timing and repetition of the false and sometimes very detailed Robbery Story, coupled with the appellant’s false “tip” to Crime Stoppers, constituted evidence from which a jury could infer that the appellant had not acted in self-defence when he killed Mr. Niazi. The Crown further submitted that the statements were admissible to challenge the credibility of the appellant’s evidence should he testify that he acted in self-defence.
[46] The statements made by the appellant fall into three groups:
- Statements made to Constable Micallef and Constable MacKinnon at the scene of the homicide on February 19, 2014 between about 4:30 p.m. and about 5:00 p.m.
- Statements made during an interview with Detective Melnick at 19 Division on February 19, 2014, beginning at about 5:50 p.m. and carrying on until about 3:00 a.m. the next morning;
- Statements made to Detective Horrocks on March 1, 2014, after the appellant was arrested and charged with murder, and on March 2 when Detective Horrocks spoke with the appellant in the cells.
(ii) The relevant Charter provisions
(iii) The proceedings at trial
[49] In his ruling, the trial judge held that all of the statements made to Constables Micallef and MacKinnon at the scene of the homicide were admissible. He broke the statement made to Detective Melnick at 19 Division down into two parts. The trial judge held that the first part of the statement, commencing at 5:50 p.m. and ending at about 7:40 p.m., was admissible. However, the second part of the statement, beginning at about 7:40 p.m. and continuing until 3:00 a.m., was obtained in violation of the appellant’s Charter rights and was excluded under s. 24(2) of the Charter. The trial judge divided the statements made by the appellant to Detective Horrocks on March 1 into three parts. He ruled the first two parts admissible, and the third part involuntary and inadmissible. The trial judge also excluded the March 2 statement as involuntary on the basis that it was closely connected to the involuntary portion of the March 1 statement.
[104] The trial judge correctly laid out the law applicable to detention for the purposes of s. 9 of the Charter. His findings of fact relevant to the interaction between the appellant and the police at the scene reveal no material misapprehension of the evidence, and are not unreasonable. His finding that the appellant was not detained at the scene should stand. It follows that the rights in s. 10 of the Charter were not engaged. There was no Charter breach at the scene.
(vi) The Statement at 19 Division
(a) The Evidence
[105] Constable MacKinnon and the appellant proceeded to 19 Division. They entered through the front door and Constable MacKinnon took the appellant directly to what he referred to as a “soft interview room”. According to the police evidence, this room was used for questioning witnesses and was less spartan than the rooms used for questioning persons under arrest.
[106] Once the appellant was in the interview room, which is a non-public part of the police station, he was not free to move about the rest of the police station or come and go as he pleased. If he wanted to use the washroom, go outside, or go back to the general waiting area to speak to the other individuals in the waiting room, the appellant needed the permission of the police to leave the interview room and pass through the non-public part of the police station. With the exception of a brief visit with his parents in the early morning hours of February 20, only police officers came and went from the interview room in which the appellant was seated for almost ten hours.
[107] Although the evidence is not entirely clear, at some time shortly after the appellant arrived at 19 Division and before he went into the interview room, the police obtained his cellphone and wallet. Constable MacKinnon could not recall whether he had asked the appellant for his wallet and cellphone, but acknowledged that he may have done so.
[108] Because the appellant did not testify, there is no evidence from him as to how the police came to be in possession of his wallet and cellphone, or why they wanted these items. I cannot, however, accept the suggestion that the appellant may have asked the police to hold onto his wallet and cellphone. There is no evidence that he gave his cellphone and wallet to the police, and it makes no sense, that having gone to the police station to give a statement, the appellant would ask the police to take possession of his wallet and cellphone. The police eventually returned the appellant’s wallet to him the next morning when he left the station at 3:00 a.m. They kept his cellphone.
[109] By the time Detective Melnick joined the appellant in the interview room at about 5:50 p.m., the homicide investigation was moving forward on several fronts. Detective Melnick was aware that the appellant was a drug dealer and believed by the police to possess firearms. He also knew that the police were investigating the appellant’s residence as a crime scene and intended to test the appellant’s hands for gunshot residue. According to Detective Melnick, this was standard practice for anyone who had been at the scene of a shooting. Detective Melnick testified that he was not aware that the police were in the process of obtaining a search warrant for the appellant’s home.
[110] Before Detective Melnick began the interview, the police offered to get the appellant some food. The appellant was not told that he could go and get his own food and return to the interview if he so wished. The appellant placed his food order through the police and dinner was delivered to him while he was sitting in the interview room. He ate it while being questioned by Detective Melnick.
[111] Detective Melnick maintained that when he began the interview, he considered the appellant a witness only and, therefore, had a KGB caution administered. In the caution, the appellant acknowledged that he was under an obligation to tell the truth during the questioning. Detective Melnick asked the appellant, “what brings you to the police station?”. He followed up with, “what happened?”. The appellant responded with a detailed version of the Robbery Story, complete with descriptions of the assailants, background information about his drug dealings, and a list of various enemies that he and Mr. Niazi had made over the years in the drug business. Detective Melnick testified that he had a “great rapport” with the appellant and thought that they were “pretty comfortable with each other”. The atmosphere in this first part of the interview was not adversarial and Detective Melnick’s questions were not accusatory.
[112] At no time before 7:40 p.m. did Detective Melnick tell the appellant that he had a right to remain silent, a right to speak with counsel, or a right to discontinue the interview and leave the police station if he so wished. Nor did Detective Melnick advise the appellant that the police intended to test his hands for gunshot residue, or that his residence was considered a crime scene. According to Detective Melnick, he did none of these things because he viewed the appellant as a witness and not a suspect, and did not think the appellant was detained.
[113] At about 7:40 p.m., Detective Melnick appeared to be in the process of winding down the interview with the appellant. He asked the appellant to take a minute and think if there was anything that he had forgotten to tell him. The appellant replied, “Is there somewhere I could walk around while I think”. The Detective replied, “I can’t really let you leave”.
[114] The appellant then requested permission to use the bathroom. Detective Melnick told him that he could use the bathroom, but could not wash his hands, presumably because the police had not yet tested his hands for gunshot residue. Detective Melnick took the appellant to the bathroom and kept him under observation while he was there.
[115] Detective Melnick returned the appellant to the interview room after the appellant had finished in the bathroom. The appellant was not asked whether he had anything else to say, nor was he invited to leave the station if he did not. Instead, he was left sitting in the interview room while Detective Melnick received an update on the ongoing investigation from his colleagues. While the appellant was sitting in the interview room waiting for Detective Melnick to return, another officer entered the room and performed a gunshot residue test. She did not ask the appellant’s permission to perform the test and did not tell him he could refuse to submit to the test. This officer believed that the appellant was under arrest at the time.
[116] When Detective Melnick returned to the interview room some time later, his attitude toward the appellant had changed. He confronted the appellant with inconsistencies between the appellant’s statements and information that had been provided by other witnesses. Detective Melnick made it clear to the appellant that he did not believe the Robbery Story that the appellant had earlier told him.
[117] Detective Melnick told the appellant that he had a right to remain silent and that anything he said would be admissible in court. He also told the appellant that he had a right to speak to a lawyer. Detective Melnick, however, linked both the right to silence and the right to a lawyer to a potential obstruction of justice charge should the appellant be lying to him. Detective Melnick did not caution the appellant or provide him with his right to counsel in respect of the homicide.
[118] Throughout the rest of the interview, Detective Melnick insisted that the appellant was not telling the truth about what happened. In the face of Detective Melnick’s persistent questioning, the appellant changed some of the details of the Robbery Story, but otherwise maintained that story. A second detective joined Detective Melnick during the interview. That detective assumed a confrontational attitude toward the appellant. He asked the appellant flat out, “[d]id you shoot him?” The appellant insisted that he had not.
[119] The appellant remained in the interview room for several more hours. He was allowed to leave the station at about 3:00 a.m. Detective Melnick told the appellant that the police were keeping his clothing. He also asked the appellant for his cellphone number. The police already had his cellphone.
[120] Detective Melnick insisted that throughout this entire process, he regarded the appellant as a witness and did not consider the appellant to be detained.
(b) Was the appellant detained at 19 Division before about 7:40 p.m. on February 19?
[121] The appellant arrived at 19 Division sometime shortly after 5:00 p.m. with Constable MacKinnon. Constable MacKinnon escorted him directly into an interview room in the non-public part of the police station. Other potential witnesses were sitting in the public waiting area of the station. For the next ten hours, until 3:00 a.m. the next morning, the police maintained total control over the appellant. With one brief exception for a supervised visit to a washroom, and a second exception for a brief visit with his parents, the appellant remained in a police interview room exclusively in the company of police officers for ten hours.
[122] The trial judge found, and his finding is not challenged on appeal, that the appellant was detained for most of the time that he was in the interview room. On the trial judge’s finding, the detention began at about 7:40 p.m., almost two hours after the interview with Detective Melnick began, and about seven hours before he was released from the interview room.
[123] Counsel for the appellant submits that the trial judge wrongly held that the appellant was not detained for the first two hours that he was in the interview room…
[124] I agree with the submissions of counsel for the appellant. The totality of the circumstances compels the conclusion that the appellant was detained from the time he was placed in the interview room.
[125] The total control by the police of an individual and the isolation of that individual from non-police personnel will often generate the kind of power imbalance that would cause a reasonable person to believe that he is no longer free to come and go as he pleases: Grant, at paras. 21-22, 44; Le, at para. 50; and Lafrance, at paras. 43-51. This is especially true when the police do and say nothing to dispel the perception flowing from that power imbalance.
[126] On the evidence, the police had total control of the appellant from the time he entered the police station. They immediately isolated him from all non-police personnel. He was never told that he had any choice in the matter. The police control extended to what he would eat, when he would eat it, and when he would be allowed to go to the bathroom.
[127] The total control that the police had assumed over the appellant while he was in the interview room is made clear from the exchange between the appellant and Detective Melnick at about 7:40 p.m. The appellant indicated that he would like to take the opportunity to walk around and think before continuing with the interview. Detective Melnick said “I can’t really let you leave”. While the Crown suggests that this is an indication only that the appellant could not move around in the non-public part of the police station, Detective Melnick’s comment is not qualified in any way. Surely, had Detective Melnick intended to tell the appellant that, while he could not walk around in the non-public part of the police station, he could leave the building and go wherever he wanted to go, Detective Melnick would have told the appellant exactly that.
[128] Detective Melnick’s indication to the appellant that he could only go to the washroom under police supervision is a further indication of the total control that the police had assumed over the appellant.
[129] The exchange between Detective Melnick and the appellant at about 7:40 p.m. also sheds light on the appellant’s perception of his situation. He believed that he needed permission from the police to leave the interview room and that he also needed permission to go to the bathroom. While the individual’s perceptions are not determinative of the detention question, they can shed some light on how a reasonable person in the individual’s circumstances would perceive his situation: Grant, at para. 32; Le, at para. 113.
[130] The trial judge interpreted the words of Detective Melnick as indicating that the appellant’s right “to leave the police station had ended” at about 7:40 p.m. With respect, this is an unreasonable inference from the evidence. Nothing in the evidence suggests that Detective Melnick would not have made exactly the same statement had the appellant indicated that he wanted to leave the interview room at any time between 5:50 p.m. and about 7:40 p.m. The only reasonable inference is that Detective Melnick was not prepared to allow the appellant to leave the interview room unattended by the police at any time until Detective Melnick was finished questioning him. It is mere happenstance that the appellant made the request which precipitated Detective Melnick’s clear indication that the appellant was not free to leave the interview room at about 7:40 p.m., as opposed to some earlier time in the interview.
[131] The evidence also indicates that the police no longer regarded the appellant as simply an eyewitness with information to provide. Their investigation was expanding to include the appellant. The decision to test the appellant’s hands for gunshot residue, the decision to keep the appellant’s cellphone and wallet, the decision to treat his residence as a crime scene, and the decision to seek a search warrant for his residence, all imply that the police had come to see the appellant as at least potentially involved in the homicide. To some extent at least, the police efforts had turned to gathering evidence potentially relevant to the appellant’s possible involvement in the homicide. [Emphasis by PJM]
[132] The decision to test the appellant’s hands for gunshot residue is an indication that the appellant was no longer regarded as simply an eyewitness. The decision to test for gunshot residue is also significant to the question of detention in a second way. Clearly, the police were going to test the appellant for gunshot residue and had no intention of asking his permission. Equally clear, there was no point in testing for gunshot residue unless the police maintained control over the appellant’s movements until the test was performed. The police decision to test the appellant for gunshot residue ensured that he would not be free to leave the police station, at least until the test was completed.
[134] The evidentiary significance of the police possession of the appellant’s wallet and cellphone did not depend on whether the police had seized the wallet and cellphone. There is no question that the police had the wallet and cellphone from the time that the appellant entered the interview room until 3:00 a.m. the next morning. While the absence of evidence from the police or the appellant makes it impossible to say exactly how the police came to possess the cellphone and wallet, the only reasonable inference is that the police acquired the cellphone and wallet as a result of a police initiative. The appellant did not offer the police his wallet and cellphone.
[135] The police possession of the appellant’s cellphone suggests an interest in his movements and communications prior to and after the homicide. In addition, by taking possession of the appellant’s cellphone and wallet, objects most people would regard as their most important personal property, the police further secured their control over the appellant and his isolation from others while he was in the interview room.
[136] Detective Melnick’s actions as the interview appeared to be winding down at about 7:40 p.m. are a further indication that the appellant was not free to leave the interview room while being questioned. Detective Melnick appeared to have finished his questions. He did not, however, advise the appellant that he could leave if he had nothing more to tell the police. Instead, he left the appellant sitting in the interview room while he went to confer with his colleagues who were involved in the ongoing investigation. After some time, Detective Melnick returned to the interview room where the appellant had been sitting waiting for him. Detective Melnick was armed with many more questions and a different attitude.
[137] …The detention inquiry is concerned with the impact of the totality of the circumstances, including the police conduct on the perception of a reasonable person in the accused’s circumstances: Grant, at para. 32; Le, at para. 116.
[138] For example, it may have made sense from the police perspective to take the appellant directly to an interview room rather than allowing him to sit in the public area of the police station with other potential witnesses. Nonetheless, the police conduct would certainly contribute to a sense of isolation and lack of control that a reasonable person in the shoes of the appellant would feel as he was escorted past other potential witnesses and directly into the non-public area of the police station. It would, of course, be open to the police to explain to someone in the appellant’s position why he was being taken directly to an interview room. That explanation, if offered, could offset, to some degree at least, the sense of isolation and lack of control that the reasonable person in those circumstances would otherwise experience.
[139] … A reasonable young person with a history of adversarial interactions with the police would feel, with particular force, the isolation, control, and police domination flowing from the treatment afforded to the appellant at the police station. A reasonable person, fixed with those personal characteristics, might well conclude that he was going nowhere until the police were finished questioning him. I would add that had the trial judge been made aware of the appellant’s Indigeneity, that, too, would have been material to whether the appellant was detained during the first part of the interview with Detective Melnick. [Emphasis by PJM]
[140] In summary, the police assumed total and exclusive control over the appellant from the time he arrived at the police station. They relinquished that control only some ten hours later when the appellant left the station. That control was clearly designed to isolate the appellant from anyone other than the police while the police were engaged in taking various investigative measures, some of which targeted at the appellant. The police never told the appellant that he was free to leave the police station if he wished to do so.
[141] The appellant was detained within the meaning of s. 9 of the Charter from the time he entered the interview room. The appellant was not informed of the reason for his detention, advised of his right to counsel, or given an opportunity to exercise that right. Consequently, his rights under ss. 10(a) and 10(b) of the Charter were also infringed.
(c) Should the statements made at 19 Division to Detective Melnick before about 7:40 p.m. be excluded under s. 24(2)?
[149] It is not unreasonable to think that, had the police complied with their obligations under s. 10 of the Charter, the appellant may have contacted counsel and after advice from counsel, at least asked Detective Melnick whether he was required to remain at the station. Assuming Detective Melnick would have taken the same position with the appellant that he ultimately took on the witness stand, Detective Melnick would have told the appellant that he was not detained and had no obligation to stay at the police station. On this scenario, the unlawful restriction on the appellant’s liberty would have ended relatively shortly after he arrived at the police station, and before he was put at risk of speaking to the police about the homicide without the advice of counsel and potentially incriminating himself in the responses he gave.
[151] I accept that the causal link between the statements made to Detective Melnick and the Charter breaches is, in the circumstances, not particularly strong. However, the force of the causal connection between the breach and the compromised evidence is only one factor to be taken into account in assessing the impact of the Charter breach on the accused’s Charter-protected interests: Beaver, at para. 125.
[153] Detective Melnick based his belief that the appellant was not detained on his perception that he and the appellant had a good relationship during the interview. The appellant was cooperative and the interview was non-adversarial. Detective Melnick’s subjective belief about his relationship with the appellant was not determinative of the appellant’s status. Detective Melnick was obliged, as an experienced officer, to make an objective assessment of the entirety of the circumstances, bearing in mind the accused’s personal characteristics. It is difficult to accept that anyone looking at the situation in the interview room from an objective perspective would not, at the very least, conclude that the appellant’s circumstances were sufficiently uncertain to call for some clarification by the police as to his status. Detective Melnick’s failure to do anything to clarify the appellant’s status as they sat in the interview room suggests, either that he had a material misunderstanding of the nature of a detention, or he preferred to avoid the topic unless, and until the appellant raised it.
[154] I would not characterize Detective Melnick’s failure to comply with his Charter obligations as wilful, or even reckless. His failure to advise the appellant that he was detained, and could contact counsel was, however, an unreasonable error in respect of what is a fundamental police power and obligation. The error is not indicative of “good faith”: Tim, at paras. 84-85.
[155] In summary, the breaches of ss. 9 and 10 of the Charter that occurred when the interview began at about 5:50 p.m. only exacerbated the seriousness of the Charter-infringing conduct identified by the trial judge as occurring after about 7:40 p.m. The impact of the breaches beginning at 5:50 p.m. on the appellant’s Charter– protected interests, also rendered more serious the overall impact of the breaches which occurred while he was in the police interview room. Exclusion of the statements made between 5:50 p.m. and about 7:40 p.m. does remove some additional reliable evidence from the Crown’s case. There remains, however, significant evidence of the appellant’s fabrication of the Robbery Story.
[156] The s. 24(2) calculus, as applied to the breaches beginning at 5:50 p.m., is essentially the same as the trial judge’s analysis. The first two Grant factors favour exclusion of the statements made between 5:50 p.m. and at about 7:40 p.m. The third Grant factor favours, although not strongly, the admission of the evidence. As with the statements made after about 7:40 p.m., the balancing of the factors favours the exclusion of the statements made between 5:50 p.m. and about 7:40 p.m.
CONCLUSION
[172] The failure to exclude the statements taken by Detective Melnick at the station on February 19 before 7:45 p.m. is an error in law. In their factum, Crown counsel, in support of the argument that the statements made before about 7:40 p.m. should be admitted, described those statements as “powerful post-offence conduct evidence that seriously undermines the appellant’s self-defence claim”. Given that position, it is not surprising that the Crown does not rely on the curative proviso to overcome the legal error made by the trial judge.
[173] The appeal is allowed. The conviction is quashed and a new trial is ordered on the charge of second degree murder.
R v Corner, 2023 ONCA 509
[July 27, 2023] NCRMD – Knowledge of Morality of Act [Justice Mayer]
AUTHOR’S NOTE: Statements given in police stations have recently received attention by appellant courts including the SCC. This decision is a positive development in the recognition that “witness” status in the eyes of the police doesn’t necessarily line up with an objective assessment of the person’s detention. Control over the movements and property of the “witness” is key. Much of commentary in this case can be applied to other cases of interviews that turn into detention. The underlying picture here, as in most such cases, appears to be an either reckless indifference by the interviewer to the facts known to police or an intentional obfuscation of the actual status of the accused. When looked at in full context it is obvious that most police station interviews are very conducive to a finding of detention but for deliberate efforts by police to let the person know they are free to move about and free to leave.
OVERVIEW
[1] The appellant, a drug dealer, shot and killed his friend and drug dealing partner, Shabir Niazi. The shooting occurred in the late afternoon of February 19, 2014, in the garage of the home of the appellant’s parents. The appellant lived with his parents.
[2] In the minutes, hours, days, and weeks that followed the homicide, the appellant told a friend, the 9-1-1 operator, other friends, family members, family members of Mr. Niazi, and several police officers, that Mr. Niazi had been shot and killed during a “drug rip off”. The appellant told different versions of this story, some more detailed than others. In essence, he indicated that several men had burst into the garage intent upon stealing the marihuana that he and Mr. Niazi stored there. The robbers pistol whipped the appellant and shot and killed Mr. Niazi before fleeing the scene. I will refer to the various versions of this narrative as the “Robbery Story”. Not only did the appellant repeatedly tell the Robbery Story, but on February 26, 2014, seven days after the homicide, the appellant placed an anonymous call to the Crime Stoppers tip line, reporting that he had seen four men fleeing the scene of the homicide.
3] Within days of the homicide, the police located the gun used to kill Mr. Niazi. The appellant had hidden the gun in a wooded area near his home, along with the sweater that he was wearing at the time of the shooting.
[4] By the time of trial, the appellant had abandoned the Robbery Story. As he recalled the events at trial, he had shot and killed Mr. Niazi in self-defence….
[5] The autopsy revealed that Mr. Niazi was hit with at least eight shots. Three of the bullets entered his head, one entered from the back of his head and travelled through the brain. A fourth bullet went through Mr. Niazi’s heart.
[6] The appellant explained that he repeatedly told the false Robbery Story because he feared retaliation from Mr. Niazi’s family, if he admitted killing Mr. Niazi.
[7] …For the reasons that follow, I would hold that the trial judge erred in admitting some of the statements made by the appellant to the police. I would allow the appeal and direct a new trial.
THE CONVICTION APPEAL
- Did the trial judge err in admitting the appellant’s statements to the police made on February 19, 2014, the day of the homicide, and on March 1, 2014, the day of the appellant’s arrest?
C. The admissibility of the appellant’s statements
(i) Overview
[44] At trial, the Crown tendered statements made by the appellant to police officers on February 19, the day of the homicide, and on March 1-2, after the appellant’s arrest on the murder charge. The statements made by the appellant all repeated, with varying levels of detail, the Robbery Story that the appellant had told the 9-1-1 operator, his friends, family members, and family members of Mr. Niazi. In none of the statements did the appellant admit any responsibility for Mr. Niazi’s death, suggest that he had been assaulted by Mr. Niazi, or that he killed Mr. Niazi in self-defence.
[45] In his evidence, the appellant indicated that the Robbery Story was false. He had shot and killed Mr. Niazi in self-defence. The Crown argued that the timing and repetition of the false and sometimes very detailed Robbery Story, coupled with the appellant’s false “tip” to Crime Stoppers, constituted evidence from which a jury could infer that the appellant had not acted in self-defence when he killed Mr. Niazi. The Crown further submitted that the statements were admissible to challenge the credibility of the appellant’s evidence should he testify that he acted in self-defence.
[46] The statements made by the appellant fall into three groups:
- Statements made to Constable Micallef and Constable MacKinnon at the scene of the homicide on February 19, 2014 between about 4:30 p.m. and about 5:00 p.m.
- Statements made during an interview with Detective Melnick at 19 Division on February 19, 2014, beginning at about 5:50 p.m. and carrying on until about 3:00 a.m. the next morning;
- Statements made to Detective Horrocks on March 1, 2014, after the appellant was arrested and charged with murder, and on March 2 when Detective Horrocks spoke with the appellant in the cells.
(ii) The relevant Charter provisions
(iii) The proceedings at trial
[49] In his ruling, the trial judge held that all of the statements made to Constables Micallef and MacKinnon at the scene of the homicide were admissible. He broke the statement made to Detective Melnick at 19 Division down into two parts. The trial judge held that the first part of the statement, commencing at 5:50 p.m. and ending at about 7:40 p.m., was admissible. However, the second part of the statement, beginning at about 7:40 p.m. and continuing until 3:00 a.m., was obtained in violation of the appellant’s Charter rights and was excluded under s. 24(2) of the Charter. The trial judge divided the statements made by the appellant to Detective Horrocks on March 1 into three parts. He ruled the first two parts admissible, and the third part involuntary and inadmissible. The trial judge also excluded the March 2 statement as involuntary on the basis that it was closely connected to the involuntary portion of the March 1 statement.
[104] The trial judge correctly laid out the law applicable to detention for the purposes of s. 9 of the Charter. His findings of fact relevant to the interaction between the appellant and the police at the scene reveal no material misapprehension of the evidence, and are not unreasonable. His finding that the appellant was not detained at the scene should stand. It follows that the rights in s. 10 of the Charter were not engaged. There was no Charter breach at the scene.
(vi) The Statement at 19 Division
(a) The Evidence
[105] Constable MacKinnon and the appellant proceeded to 19 Division. They entered through the front door and Constable MacKinnon took the appellant directly to what he referred to as a “soft interview room”. According to the police evidence, this room was used for questioning witnesses and was less spartan than the rooms used for questioning persons under arrest.
[106] Once the appellant was in the interview room, which is a non-public part of the police station, he was not free to move about the rest of the police station or come and go as he pleased. If he wanted to use the washroom, go outside, or go back to the general waiting area to speak to the other individuals in the waiting room, the appellant needed the permission of the police to leave the interview room and pass through the non-public part of the police station. With the exception of a brief visit with his parents in the early morning hours of February 20, only police officers came and went from the interview room in which the appellant was seated for almost ten hours.
[107] Although the evidence is not entirely clear, at some time shortly after the appellant arrived at 19 Division and before he went into the interview room, the police obtained his cellphone and wallet. Constable MacKinnon could not recall whether he had asked the appellant for his wallet and cellphone, but acknowledged that he may have done so.
[108] Because the appellant did not testify, there is no evidence from him as to how the police came to be in possession of his wallet and cellphone, or why they wanted these items. I cannot, however, accept the suggestion that the appellant may have asked the police to hold onto his wallet and cellphone. There is no evidence that he gave his cellphone and wallet to the police, and it makes no sense, that having gone to the police station to give a statement, the appellant would ask the police to take possession of his wallet and cellphone. The police eventually returned the appellant’s wallet to him the next morning when he left the station at 3:00 a.m. They kept his cellphone.
[109] By the time Detective Melnick joined the appellant in the interview room at about 5:50 p.m., the homicide investigation was moving forward on several fronts. Detective Melnick was aware that the appellant was a drug dealer and believed by the police to possess firearms. He also knew that the police were investigating the appellant’s residence as a crime scene and intended to test the appellant’s hands for gunshot residue. According to Detective Melnick, this was standard practice for anyone who had been at the scene of a shooting. Detective Melnick testified that he was not aware that the police were in the process of obtaining a search warrant for the appellant’s home.
[110] Before Detective Melnick began the interview, the police offered to get the appellant some food. The appellant was not told that he could go and get his own food and return to the interview if he so wished. The appellant placed his food order through the police and dinner was delivered to him while he was sitting in the interview room. He ate it while being questioned by Detective Melnick.
[111] Detective Melnick maintained that when he began the interview, he considered the appellant a witness only and, therefore, had a KGB caution administered. In the caution, the appellant acknowledged that he was under an obligation to tell the truth during the questioning. Detective Melnick asked the appellant, “what brings you to the police station?”. He followed up with, “what happened?”. The appellant responded with a detailed version of the Robbery Story, complete with descriptions of the assailants, background information about his drug dealings, and a list of various enemies that he and Mr. Niazi had made over the years in the drug business. Detective Melnick testified that he had a “great rapport” with the appellant and thought that they were “pretty comfortable with each other”. The atmosphere in this first part of the interview was not adversarial and Detective Melnick’s questions were not accusatory.
[112] At no time before 7:40 p.m. did Detective Melnick tell the appellant that he had a right to remain silent, a right to speak with counsel, or a right to discontinue the interview and leave the police station if he so wished. Nor did Detective Melnick advise the appellant that the police intended to test his hands for gunshot residue, or that his residence was considered a crime scene. According to Detective Melnick, he did none of these things because he viewed the appellant as a witness and not a suspect, and did not think the appellant was detained.
[113] At about 7:40 p.m., Detective Melnick appeared to be in the process of winding down the interview with the appellant. He asked the appellant to take a minute and think if there was anything that he had forgotten to tell him. The appellant replied, “Is there somewhere I could walk around while I think”. The Detective replied, “I can’t really let you leave”.
[114] The appellant then requested permission to use the bathroom. Detective Melnick told him that he could use the bathroom, but could not wash his hands, presumably because the police had not yet tested his hands for gunshot residue. Detective Melnick took the appellant to the bathroom and kept him under observation while he was there.
[115] Detective Melnick returned the appellant to the interview room after the appellant had finished in the bathroom. The appellant was not asked whether he had anything else to say, nor was he invited to leave the station if he did not. Instead, he was left sitting in the interview room while Detective Melnick received an update on the ongoing investigation from his colleagues. While the appellant was sitting in the interview room waiting for Detective Melnick to return, another officer entered the room and performed a gunshot residue test. She did not ask the appellant’s permission to perform the test and did not tell him he could refuse to submit to the test. This officer believed that the appellant was under arrest at the time.
[116] When Detective Melnick returned to the interview room some time later, his attitude toward the appellant had changed. He confronted the appellant with inconsistencies between the appellant’s statements and information that had been provided by other witnesses. Detective Melnick made it clear to the appellant that he did not believe the Robbery Story that the appellant had earlier told him.
[117] Detective Melnick told the appellant that he had a right to remain silent and that anything he said would be admissible in court. He also told the appellant that he had a right to speak to a lawyer. Detective Melnick, however, linked both the right to silence and the right to a lawyer to a potential obstruction of justice charge should the appellant be lying to him. Detective Melnick did not caution the appellant or provide him with his right to counsel in respect of the homicide.
[118] Throughout the rest of the interview, Detective Melnick insisted that the appellant was not telling the truth about what happened. In the face of Detective Melnick’s persistent questioning, the appellant changed some of the details of the Robbery Story, but otherwise maintained that story. A second detective joined Detective Melnick during the interview. That detective assumed a confrontational attitude toward the appellant. He asked the appellant flat out, “[d]id you shoot him?” The appellant insisted that he had not.
[119] The appellant remained in the interview room for several more hours. He was allowed to leave the station at about 3:00 a.m. Detective Melnick told the appellant that the police were keeping his clothing. He also asked the appellant for his cellphone number. The police already had his cellphone.
[120] Detective Melnick insisted that throughout this entire process, he regarded the appellant as a witness and did not consider the appellant to be detained.
(b) Was the appellant detained at 19 Division before about 7:40 p.m. on February 19?
[121] The appellant arrived at 19 Division sometime shortly after 5:00 p.m. with Constable MacKinnon. Constable MacKinnon escorted him directly into an interview room in the non-public part of the police station. Other potential witnesses were sitting in the public waiting area of the station. For the next ten hours, until 3:00 a.m. the next morning, the police maintained total control over the appellant. With one brief exception for a supervised visit to a washroom, and a second exception for a brief visit with his parents, the appellant remained in a police interview room exclusively in the company of police officers for ten hours.
[122] The trial judge found, and his finding is not challenged on appeal, that the appellant was detained for most of the time that he was in the interview room. On the trial judge’s finding, the detention began at about 7:40 p.m., almost two hours after the interview with Detective Melnick began, and about seven hours before he was released from the interview room.
[123] Counsel for the appellant submits that the trial judge wrongly held that the appellant was not detained for the first two hours that he was in the interview room…
[124] I agree with the submissions of counsel for the appellant. The totality of the circumstances compels the conclusion that the appellant was detained from the time he was placed in the interview room.
[125] The total control by the police of an individual and the isolation of that individual from non-police personnel will often generate the kind of power imbalance that would cause a reasonable person to believe that he is no longer free to come and go as he pleases: Grant, at paras. 21-22, 44; Le, at para. 50; and Lafrance, at paras. 43-51. This is especially true when the police do and say nothing to dispel the perception flowing from that power imbalance.
[126] On the evidence, the police had total control of the appellant from the time he entered the police station. They immediately isolated him from all non-police personnel. He was never told that he had any choice in the matter. The police control extended to what he would eat, when he would eat it, and when he would be allowed to go to the bathroom.
[127] The total control that the police had assumed over the appellant while he was in the interview room is made clear from the exchange between the appellant and Detective Melnick at about 7:40 p.m. The appellant indicated that he would like to take the opportunity to walk around and think before continuing with the interview. Detective Melnick said “I can’t really let you leave”. While the Crown suggests that this is an indication only that the appellant could not move around in the non-public part of the police station, Detective Melnick’s comment is not qualified in any way. Surely, had Detective Melnick intended to tell the appellant that, while he could not walk around in the non-public part of the police station, he could leave the building and go wherever he wanted to go, Detective Melnick would have told the appellant exactly that.
[128] Detective Melnick’s indication to the appellant that he could only go to the washroom under police supervision is a further indication of the total control that the police had assumed over the appellant.
[129] The exchange between Detective Melnick and the appellant at about 7:40 p.m. also sheds light on the appellant’s perception of his situation. He believed that he needed permission from the police to leave the interview room and that he also needed permission to go to the bathroom. While the individual’s perceptions are not determinative of the detention question, they can shed some light on how a reasonable person in the individual’s circumstances would perceive his situation: Grant, at para. 32; Le, at para. 113.
[130] The trial judge interpreted the words of Detective Melnick as indicating that the appellant’s right “to leave the police station had ended” at about 7:40 p.m. With respect, this is an unreasonable inference from the evidence. Nothing in the evidence suggests that Detective Melnick would not have made exactly the same statement had the appellant indicated that he wanted to leave the interview room at any time between 5:50 p.m. and about 7:40 p.m. The only reasonable inference is that Detective Melnick was not prepared to allow the appellant to leave the interview room unattended by the police at any time until Detective Melnick was finished questioning him. It is mere happenstance that the appellant made the request which precipitated Detective Melnick’s clear indication that the appellant was not free to leave the interview room at about 7:40 p.m., as opposed to some earlier time in the interview.
[131] The evidence also indicates that the police no longer regarded the appellant as simply an eyewitness with information to provide. Their investigation was expanding to include the appellant. The decision to test the appellant’s hands for gunshot residue, the decision to keep the appellant’s cellphone and wallet, the decision to treat his residence as a crime scene, and the decision to seek a search warrant for his residence, all imply that the police had come to see the appellant as at least potentially involved in the homicide. To some extent at least, the police efforts had turned to gathering evidence potentially relevant to the appellant’s possible involvement in the homicide. [Emphasis by PJM]
[132] The decision to test the appellant’s hands for gunshot residue is an indication that the appellant was no longer regarded as simply an eyewitness. The decision to test for gunshot residue is also significant to the question of detention in a second way. Clearly, the police were going to test the appellant for gunshot residue and had no intention of asking his permission. Equally clear, there was no point in testing for gunshot residue unless the police maintained control over the appellant’s movements until the test was performed. The police decision to test the appellant for gunshot residue ensured that he would not be free to leave the police station, at least until the test was completed.
[134] The evidentiary significance of the police possession of the appellant’s wallet and cellphone did not depend on whether the police had seized the wallet and cellphone. There is no question that the police had the wallet and cellphone from the time that the appellant entered the interview room until 3:00 a.m. the next morning. While the absence of evidence from the police or the appellant makes it impossible to say exactly how the police came to possess the cellphone and wallet, the only reasonable inference is that the police acquired the cellphone and wallet as a result of a police initiative. The appellant did not offer the police his wallet and cellphone.
[135] The police possession of the appellant’s cellphone suggests an interest in his movements and communications prior to and after the homicide. In addition, by taking possession of the appellant’s cellphone and wallet, objects most people would regard as their most important personal property, the police further secured their control over the appellant and his isolation from others while he was in the interview room.
[136] Detective Melnick’s actions as the interview appeared to be winding down at about 7:40 p.m. are a further indication that the appellant was not free to leave the interview room while being questioned. Detective Melnick appeared to have finished his questions. He did not, however, advise the appellant that he could leave if he had nothing more to tell the police. Instead, he left the appellant sitting in the interview room while he went to confer with his colleagues who were involved in the ongoing investigation. After some time, Detective Melnick returned to the interview room where the appellant had been sitting waiting for him. Detective Melnick was armed with many more questions and a different attitude.
[137] …The detention inquiry is concerned with the impact of the totality of the circumstances, including the police conduct on the perception of a reasonable person in the accused’s circumstances: Grant, at para. 32; Le, at para. 116.
[138] For example, it may have made sense from the police perspective to take the appellant directly to an interview room rather than allowing him to sit in the public area of the police station with other potential witnesses. Nonetheless, the police conduct would certainly contribute to a sense of isolation and lack of control that a reasonable person in the shoes of the appellant would feel as he was escorted past other potential witnesses and directly into the non-public area of the police station. It would, of course, be open to the police to explain to someone in the appellant’s position why he was being taken directly to an interview room. That explanation, if offered, could offset, to some degree at least, the sense of isolation and lack of control that the reasonable person in those circumstances would otherwise experience.
[139] … A reasonable young person with a history of adversarial interactions with the police would feel, with particular force, the isolation, control, and police domination flowing from the treatment afforded to the appellant at the police station. A reasonable person, fixed with those personal characteristics, might well conclude that he was going nowhere until the police were finished questioning him. I would add that had the trial judge been made aware of the appellant’s Indigeneity, that, too, would have been material to whether the appellant was detained during the first part of the interview with Detective Melnick. [Emphasis by PJM]
[140] In summary, the police assumed total and exclusive control over the appellant from the time he arrived at the police station. They relinquished that control only some ten hours later when the appellant left the station. That control was clearly designed to isolate the appellant from anyone other than the police while the police were engaged in taking various investigative measures, some of which targeted at the appellant. The police never told the appellant that he was free to leave the police station if he wished to do so.
[141] The appellant was detained within the meaning of s. 9 of the Charter from the time he entered the interview room. The appellant was not informed of the reason for his detention, advised of his right to counsel, or given an opportunity to exercise that right. Consequently, his rights under ss. 10(a) and 10(b) of the Charter were also infringed.
(c) Should the statements made at 19 Division to Detective Melnick before about 7:40 p.m. be excluded under s. 24(2)?
[149] It is not unreasonable to think that, had the police complied with their obligations under s. 10 of the Charter, the appellant may have contacted counsel and after advice from counsel, at least asked Detective Melnick whether he was required to remain at the station. Assuming Detective Melnick would have taken the same position with the appellant that he ultimately took on the witness stand, Detective Melnick would have told the appellant that he was not detained and had no obligation to stay at the police station. On this scenario, the unlawful restriction on the appellant’s liberty would have ended relatively shortly after he arrived at the police station, and before he was put at risk of speaking to the police about the homicide without the advice of counsel and potentially incriminating himself in the responses he gave.
[151] I accept that the causal link between the statements made to Detective Melnick and the Charter breaches is, in the circumstances, not particularly strong. However, the force of the causal connection between the breach and the compromised evidence is only one factor to be taken into account in assessing the impact of the Charter breach on the accused’s Charter-protected interests: Beaver, at para. 125.
[153] Detective Melnick based his belief that the appellant was not detained on his perception that he and the appellant had a good relationship during the interview. The appellant was cooperative and the interview was non-adversarial. Detective Melnick’s subjective belief about his relationship with the appellant was not determinative of the appellant’s status. Detective Melnick was obliged, as an experienced officer, to make an objective assessment of the entirety of the circumstances, bearing in mind the accused’s personal characteristics. It is difficult to accept that anyone looking at the situation in the interview room from an objective perspective would not, at the very least, conclude that the appellant’s circumstances were sufficiently uncertain to call for some clarification by the police as to his status. Detective Melnick’s failure to do anything to clarify the appellant’s status as they sat in the interview room suggests, either that he had a material misunderstanding of the nature of a detention, or he preferred to avoid the topic unless, and until the appellant raised it.
[154] I would not characterize Detective Melnick’s failure to comply with his Charter obligations as wilful, or even reckless. His failure to advise the appellant that he was detained, and could contact counsel was, however, an unreasonable error in respect of what is a fundamental police power and obligation. The error is not indicative of “good faith”: Tim, at paras. 84-85.
[155] In summary, the breaches of ss. 9 and 10 of the Charter that occurred when the interview began at about 5:50 p.m. only exacerbated the seriousness of the Charter-infringing conduct identified by the trial judge as occurring after about 7:40 p.m. The impact of the breaches beginning at 5:50 p.m. on the appellant’s Charter– protected interests, also rendered more serious the overall impact of the breaches which occurred while he was in the police interview room. Exclusion of the statements made between 5:50 p.m. and about 7:40 p.m. does remove some additional reliable evidence from the Crown’s case. There remains, however, significant evidence of the appellant’s fabrication of the Robbery Story.
[156] The s. 24(2) calculus, as applied to the breaches beginning at 5:50 p.m., is essentially the same as the trial judge’s analysis. The first two Grant factors favour exclusion of the statements made between 5:50 p.m. and at about 7:40 p.m. The third Grant factor favours, although not strongly, the admission of the evidence. As with the statements made after about 7:40 p.m., the balancing of the factors favours the exclusion of the statements made between 5:50 p.m. and about 7:40 p.m.
CONCLUSION
[172] The failure to exclude the statements taken by Detective Melnick at the station on February 19 before 7:45 p.m. is an error in law. In their factum, Crown counsel, in support of the argument that the statements made before about 7:40 p.m. should be admitted, described those statements as “powerful post-offence conduct evidence that seriously undermines the appellant’s self-defence claim”. Given that position, it is not surprising that the Crown does not rely on the curative proviso to overcome the legal error made by the trial judge.
[173] The appeal is allowed. The conviction is quashed and a new trial is ordered on the charge of second degree murder.
R v Corner, 2023 ONCA 509
[July 27, 2023] NCRMD – Knowledge of Morality of Act [Justice Mayer]
AUTHOR’S NOTE: Statements given in police stations have recently received attention by appellant courts including the SCC. This decision is a positive development in the recognition that “witness” status in the eyes of the police doesn’t necessarily line up with an objective assessment of the person’s detention. Control over the movements and property of the “witness” is key. Much of commentary in this case can be applied to other cases of interviews that turn into detention. The underlying picture here, as in most such cases, appears to be an either reckless indifference by the interviewer to the facts known to police or an intentional obfuscation of the actual status of the accused. When looked at in full context it is obvious that most police station interviews are very conducive to a finding of detention but for deliberate efforts by police to let the person know they are free to move about and free to leave.
OVERVIEW
[1] The appellant, a drug dealer, shot and killed his friend and drug dealing partner, Shabir Niazi. The shooting occurred in the late afternoon of February 19, 2014, in the garage of the home of the appellant’s parents. The appellant lived with his parents.
[2] In the minutes, hours, days, and weeks that followed the homicide, the appellant told a friend, the 9-1-1 operator, other friends, family members, family members of Mr. Niazi, and several police officers, that Mr. Niazi had been shot and killed during a “drug rip off”. The appellant told different versions of this story, some more detailed than others. In essence, he indicated that several men had burst into the garage intent upon stealing the marihuana that he and Mr. Niazi stored there. The robbers pistol whipped the appellant and shot and killed Mr. Niazi before fleeing the scene. I will refer to the various versions of this narrative as the “Robbery Story”. Not only did the appellant repeatedly tell the Robbery Story, but on February 26, 2014, seven days after the homicide, the appellant placed an anonymous call to the Crime Stoppers tip line, reporting that he had seen four men fleeing the scene of the homicide.
3] Within days of the homicide, the police located the gun used to kill Mr. Niazi. The appellant had hidden the gun in a wooded area near his home, along with the sweater that he was wearing at the time of the shooting.
[4] By the time of trial, the appellant had abandoned the Robbery Story. As he recalled the events at trial, he had shot and killed Mr. Niazi in self-defence….
[5] The autopsy revealed that Mr. Niazi was hit with at least eight shots. Three of the bullets entered his head, one entered from the back of his head and travelled through the brain. A fourth bullet went through Mr. Niazi’s heart.
[6] The appellant explained that he repeatedly told the false Robbery Story because he feared retaliation from Mr. Niazi’s family, if he admitted killing Mr. Niazi.
[7] …For the reasons that follow, I would hold that the trial judge erred in admitting some of the statements made by the appellant to the police. I would allow the appeal and direct a new trial.
THE CONVICTION APPEAL
- Did the trial judge err in admitting the appellant’s statements to the police made on February 19, 2014, the day of the homicide, and on March 1, 2014, the day of the appellant’s arrest?
C. The admissibility of the appellant’s statements
(i) Overview
[44] At trial, the Crown tendered statements made by the appellant to police officers on February 19, the day of the homicide, and on March 1-2, after the appellant’s arrest on the murder charge. The statements made by the appellant all repeated, with varying levels of detail, the Robbery Story that the appellant had told the 9-1-1 operator, his friends, family members, and family members of Mr. Niazi. In none of the statements did the appellant admit any responsibility for Mr. Niazi’s death, suggest that he had been assaulted by Mr. Niazi, or that he killed Mr. Niazi in self-defence.
[45] In his evidence, the appellant indicated that the Robbery Story was false. He had shot and killed Mr. Niazi in self-defence. The Crown argued that the timing and repetition of the false and sometimes very detailed Robbery Story, coupled with the appellant’s false “tip” to Crime Stoppers, constituted evidence from which a jury could infer that the appellant had not acted in self-defence when he killed Mr. Niazi. The Crown further submitted that the statements were admissible to challenge the credibility of the appellant’s evidence should he testify that he acted in self-defence.
[46] The statements made by the appellant fall into three groups:
- Statements made to Constable Micallef and Constable MacKinnon at the scene of the homicide on February 19, 2014 between about 4:30 p.m. and about 5:00 p.m.
- Statements made during an interview with Detective Melnick at 19 Division on February 19, 2014, beginning at about 5:50 p.m. and carrying on until about 3:00 a.m. the next morning;
- Statements made to Detective Horrocks on March 1, 2014, after the appellant was arrested and charged with murder, and on March 2 when Detective Horrocks spoke with the appellant in the cells.
(ii) The relevant Charter provisions
(iii) The proceedings at trial
[49] In his ruling, the trial judge held that all of the statements made to Constables Micallef and MacKinnon at the scene of the homicide were admissible. He broke the statement made to Detective Melnick at 19 Division down into two parts. The trial judge held that the first part of the statement, commencing at 5:50 p.m. and ending at about 7:40 p.m., was admissible. However, the second part of the statement, beginning at about 7:40 p.m. and continuing until 3:00 a.m., was obtained in violation of the appellant’s Charter rights and was excluded under s. 24(2) of the Charter. The trial judge divided the statements made by the appellant to Detective Horrocks on March 1 into three parts. He ruled the first two parts admissible, and the third part involuntary and inadmissible. The trial judge also excluded the March 2 statement as involuntary on the basis that it was closely connected to the involuntary portion of the March 1 statement.
[104] The trial judge correctly laid out the law applicable to detention for the purposes of s. 9 of the Charter. His findings of fact relevant to the interaction between the appellant and the police at the scene reveal no material misapprehension of the evidence, and are not unreasonable. His finding that the appellant was not detained at the scene should stand. It follows that the rights in s. 10 of the Charter were not engaged. There was no Charter breach at the scene.
(vi) The Statement at 19 Division
(a) The Evidence
[105] Constable MacKinnon and the appellant proceeded to 19 Division. They entered through the front door and Constable MacKinnon took the appellant directly to what he referred to as a “soft interview room”. According to the police evidence, this room was used for questioning witnesses and was less spartan than the rooms used for questioning persons under arrest.
[106] Once the appellant was in the interview room, which is a non-public part of the police station, he was not free to move about the rest of the police station or come and go as he pleased. If he wanted to use the washroom, go outside, or go back to the general waiting area to speak to the other individuals in the waiting room, the appellant needed the permission of the police to leave the interview room and pass through the non-public part of the police station. With the exception of a brief visit with his parents in the early morning hours of February 20, only police officers came and went from the interview room in which the appellant was seated for almost ten hours.
[107] Although the evidence is not entirely clear, at some time shortly after the appellant arrived at 19 Division and before he went into the interview room, the police obtained his cellphone and wallet. Constable MacKinnon could not recall whether he had asked the appellant for his wallet and cellphone, but acknowledged that he may have done so.
[108] Because the appellant did not testify, there is no evidence from him as to how the police came to be in possession of his wallet and cellphone, or why they wanted these items. I cannot, however, accept the suggestion that the appellant may have asked the police to hold onto his wallet and cellphone. There is no evidence that he gave his cellphone and wallet to the police, and it makes no sense, that having gone to the police station to give a statement, the appellant would ask the police to take possession of his wallet and cellphone. The police eventually returned the appellant’s wallet to him the next morning when he left the station at 3:00 a.m. They kept his cellphone.
[109] By the time Detective Melnick joined the appellant in the interview room at about 5:50 p.m., the homicide investigation was moving forward on several fronts. Detective Melnick was aware that the appellant was a drug dealer and believed by the police to possess firearms. He also knew that the police were investigating the appellant’s residence as a crime scene and intended to test the appellant’s hands for gunshot residue. According to Detective Melnick, this was standard practice for anyone who had been at the scene of a shooting. Detective Melnick testified that he was not aware that the police were in the process of obtaining a search warrant for the appellant’s home.
[110] Before Detective Melnick began the interview, the police offered to get the appellant some food. The appellant was not told that he could go and get his own food and return to the interview if he so wished. The appellant placed his food order through the police and dinner was delivered to him while he was sitting in the interview room. He ate it while being questioned by Detective Melnick.
[111] Detective Melnick maintained that when he began the interview, he considered the appellant a witness only and, therefore, had a KGB caution administered. In the caution, the appellant acknowledged that he was under an obligation to tell the truth during the questioning. Detective Melnick asked the appellant, “what brings you to the police station?”. He followed up with, “what happened?”. The appellant responded with a detailed version of the Robbery Story, complete with descriptions of the assailants, background information about his drug dealings, and a list of various enemies that he and Mr. Niazi had made over the years in the drug business. Detective Melnick testified that he had a “great rapport” with the appellant and thought that they were “pretty comfortable with each other”. The atmosphere in this first part of the interview was not adversarial and Detective Melnick’s questions were not accusatory.
[112] At no time before 7:40 p.m. did Detective Melnick tell the appellant that he had a right to remain silent, a right to speak with counsel, or a right to discontinue the interview and leave the police station if he so wished. Nor did Detective Melnick advise the appellant that the police intended to test his hands for gunshot residue, or that his residence was considered a crime scene. According to Detective Melnick, he did none of these things because he viewed the appellant as a witness and not a suspect, and did not think the appellant was detained.
[113] At about 7:40 p.m., Detective Melnick appeared to be in the process of winding down the interview with the appellant. He asked the appellant to take a minute and think if there was anything that he had forgotten to tell him. The appellant replied, “Is there somewhere I could walk around while I think”. The Detective replied, “I can’t really let you leave”.
[114] The appellant then requested permission to use the bathroom. Detective Melnick told him that he could use the bathroom, but could not wash his hands, presumably because the police had not yet tested his hands for gunshot residue. Detective Melnick took the appellant to the bathroom and kept him under observation while he was there.
[115] Detective Melnick returned the appellant to the interview room after the appellant had finished in the bathroom. The appellant was not asked whether he had anything else to say, nor was he invited to leave the station if he did not. Instead, he was left sitting in the interview room while Detective Melnick received an update on the ongoing investigation from his colleagues. While the appellant was sitting in the interview room waiting for Detective Melnick to return, another officer entered the room and performed a gunshot residue test. She did not ask the appellant’s permission to perform the test and did not tell him he could refuse to submit to the test. This officer believed that the appellant was under arrest at the time.
[116] When Detective Melnick returned to the interview room some time later, his attitude toward the appellant had changed. He confronted the appellant with inconsistencies between the appellant’s statements and information that had been provided by other witnesses. Detective Melnick made it clear to the appellant that he did not believe the Robbery Story that the appellant had earlier told him.
[117] Detective Melnick told the appellant that he had a right to remain silent and that anything he said would be admissible in court. He also told the appellant that he had a right to speak to a lawyer. Detective Melnick, however, linked both the right to silence and the right to a lawyer to a potential obstruction of justice charge should the appellant be lying to him. Detective Melnick did not caution the appellant or provide him with his right to counsel in respect of the homicide.
[118] Throughout the rest of the interview, Detective Melnick insisted that the appellant was not telling the truth about what happened. In the face of Detective Melnick’s persistent questioning, the appellant changed some of the details of the Robbery Story, but otherwise maintained that story. A second detective joined Detective Melnick during the interview. That detective assumed a confrontational attitude toward the appellant. He asked the appellant flat out, “[d]id you shoot him?” The appellant insisted that he had not.
[119] The appellant remained in the interview room for several more hours. He was allowed to leave the station at about 3:00 a.m. Detective Melnick told the appellant that the police were keeping his clothing. He also asked the appellant for his cellphone number. The police already had his cellphone.
[120] Detective Melnick insisted that throughout this entire process, he regarded the appellant as a witness and did not consider the appellant to be detained.
(b) Was the appellant detained at 19 Division before about 7:40 p.m. on February 19?
[121] The appellant arrived at 19 Division sometime shortly after 5:00 p.m. with Constable MacKinnon. Constable MacKinnon escorted him directly into an interview room in the non-public part of the police station. Other potential witnesses were sitting in the public waiting area of the station. For the next ten hours, until 3:00 a.m. the next morning, the police maintained total control over the appellant. With one brief exception for a supervised visit to a washroom, and a second exception for a brief visit with his parents, the appellant remained in a police interview room exclusively in the company of police officers for ten hours.
[122] The trial judge found, and his finding is not challenged on appeal, that the appellant was detained for most of the time that he was in the interview room. On the trial judge’s finding, the detention began at about 7:40 p.m., almost two hours after the interview with Detective Melnick began, and about seven hours before he was released from the interview room.
[123] Counsel for the appellant submits that the trial judge wrongly held that the appellant was not detained for the first two hours that he was in the interview room…
[124] I agree with the submissions of counsel for the appellant. The totality of the circumstances compels the conclusion that the appellant was detained from the time he was placed in the interview room.
[125] The total control by the police of an individual and the isolation of that individual from non-police personnel will often generate the kind of power imbalance that would cause a reasonable person to believe that he is no longer free to come and go as he pleases: Grant, at paras. 21-22, 44; Le, at para. 50; and Lafrance, at paras. 43-51. This is especially true when the police do and say nothing to dispel the perception flowing from that power imbalance.
[126] On the evidence, the police had total control of the appellant from the time he entered the police station. They immediately isolated him from all non-police personnel. He was never told that he had any choice in the matter. The police control extended to what he would eat, when he would eat it, and when he would be allowed to go to the bathroom.
[127] The total control that the police had assumed over the appellant while he was in the interview room is made clear from the exchange between the appellant and Detective Melnick at about 7:40 p.m. The appellant indicated that he would like to take the opportunity to walk around and think before continuing with the interview. Detective Melnick said “I can’t really let you leave”. While the Crown suggests that this is an indication only that the appellant could not move around in the non-public part of the police station, Detective Melnick’s comment is not qualified in any way. Surely, had Detective Melnick intended to tell the appellant that, while he could not walk around in the non-public part of the police station, he could leave the building and go wherever he wanted to go, Detective Melnick would have told the appellant exactly that.
[128] Detective Melnick’s indication to the appellant that he could only go to the washroom under police supervision is a further indication of the total control that the police had assumed over the appellant.
[129] The exchange between Detective Melnick and the appellant at about 7:40 p.m. also sheds light on the appellant’s perception of his situation. He believed that he needed permission from the police to leave the interview room and that he also needed permission to go to the bathroom. While the individual’s perceptions are not determinative of the detention question, they can shed some light on how a reasonable person in the individual’s circumstances would perceive his situation: Grant, at para. 32; Le, at para. 113.
[130] The trial judge interpreted the words of Detective Melnick as indicating that the appellant’s right “to leave the police station had ended” at about 7:40 p.m. With respect, this is an unreasonable inference from the evidence. Nothing in the evidence suggests that Detective Melnick would not have made exactly the same statement had the appellant indicated that he wanted to leave the interview room at any time between 5:50 p.m. and about 7:40 p.m. The only reasonable inference is that Detective Melnick was not prepared to allow the appellant to leave the interview room unattended by the police at any time until Detective Melnick was finished questioning him. It is mere happenstance that the appellant made the request which precipitated Detective Melnick’s clear indication that the appellant was not free to leave the interview room at about 7:40 p.m., as opposed to some earlier time in the interview.
[131] The evidence also indicates that the police no longer regarded the appellant as simply an eyewitness with information to provide. Their investigation was expanding to include the appellant. The decision to test the appellant’s hands for gunshot residue, the decision to keep the appellant’s cellphone and wallet, the decision to treat his residence as a crime scene, and the decision to seek a search warrant for his residence, all imply that the police had come to see the appellant as at least potentially involved in the homicide. To some extent at least, the police efforts had turned to gathering evidence potentially relevant to the appellant’s possible involvement in the homicide. [Emphasis by PJM]
[132] The decision to test the appellant’s hands for gunshot residue is an indication that the appellant was no longer regarded as simply an eyewitness. The decision to test for gunshot residue is also significant to the question of detention in a second way. Clearly, the police were going to test the appellant for gunshot residue and had no intention of asking his permission. Equally clear, there was no point in testing for gunshot residue unless the police maintained control over the appellant’s movements until the test was performed. The police decision to test the appellant for gunshot residue ensured that he would not be free to leave the police station, at least until the test was completed.
[134] The evidentiary significance of the police possession of the appellant’s wallet and cellphone did not depend on whether the police had seized the wallet and cellphone. There is no question that the police had the wallet and cellphone from the time that the appellant entered the interview room until 3:00 a.m. the next morning. While the absence of evidence from the police or the appellant makes it impossible to say exactly how the police came to possess the cellphone and wallet, the only reasonable inference is that the police acquired the cellphone and wallet as a result of a police initiative. The appellant did not offer the police his wallet and cellphone.
[135] The police possession of the appellant’s cellphone suggests an interest in his movements and communications prior to and after the homicide. In addition, by taking possession of the appellant’s cellphone and wallet, objects most people would regard as their most important personal property, the police further secured their control over the appellant and his isolation from others while he was in the interview room.
[136] Detective Melnick’s actions as the interview appeared to be winding down at about 7:40 p.m. are a further indication that the appellant was not free to leave the interview room while being questioned. Detective Melnick appeared to have finished his questions. He did not, however, advise the appellant that he could leave if he had nothing more to tell the police. Instead, he left the appellant sitting in the interview room while he went to confer with his colleagues who were involved in the ongoing investigation. After some time, Detective Melnick returned to the interview room where the appellant had been sitting waiting for him. Detective Melnick was armed with many more questions and a different attitude.
[137] …The detention inquiry is concerned with the impact of the totality of the circumstances, including the police conduct on the perception of a reasonable person in the accused’s circumstances: Grant, at para. 32; Le, at para. 116.
[138] For example, it may have made sense from the police perspective to take the appellant directly to an interview room rather than allowing him to sit in the public area of the police station with other potential witnesses. Nonetheless, the police conduct would certainly contribute to a sense of isolation and lack of control that a reasonable person in the shoes of the appellant would feel as he was escorted past other potential witnesses and directly into the non-public area of the police station. It would, of course, be open to the police to explain to someone in the appellant’s position why he was being taken directly to an interview room. That explanation, if offered, could offset, to some degree at least, the sense of isolation and lack of control that the reasonable person in those circumstances would otherwise experience.
[139] … A reasonable young person with a history of adversarial interactions with the police would feel, with particular force, the isolation, control, and police domination flowing from the treatment afforded to the appellant at the police station. A reasonable person, fixed with those personal characteristics, might well conclude that he was going nowhere until the police were finished questioning him. I would add that had the trial judge been made aware of the appellant’s Indigeneity, that, too, would have been material to whether the appellant was detained during the first part of the interview with Detective Melnick. [Emphasis by PJM]
[140] In summary, the police assumed total and exclusive control over the appellant from the time he arrived at the police station. They relinquished that control only some ten hours later when the appellant left the station. That control was clearly designed to isolate the appellant from anyone other than the police while the police were engaged in taking various investigative measures, some of which targeted at the appellant. The police never told the appellant that he was free to leave the police station if he wished to do so.
[141] The appellant was detained within the meaning of s. 9 of the Charter from the time he entered the interview room. The appellant was not informed of the reason for his detention, advised of his right to counsel, or given an opportunity to exercise that right. Consequently, his rights under ss. 10(a) and 10(b) of the Charter were also infringed.
(c) Should the statements made at 19 Division to Detective Melnick before about 7:40 p.m. be excluded under s. 24(2)?
[149] It is not unreasonable to think that, had the police complied with their obligations under s. 10 of the Charter, the appellant may have contacted counsel and after advice from counsel, at least asked Detective Melnick whether he was required to remain at the station. Assuming Detective Melnick would have taken the same position with the appellant that he ultimately took on the witness stand, Detective Melnick would have told the appellant that he was not detained and had no obligation to stay at the police station. On this scenario, the unlawful restriction on the appellant’s liberty would have ended relatively shortly after he arrived at the police station, and before he was put at risk of speaking to the police about the homicide without the advice of counsel and potentially incriminating himself in the responses he gave.
[151] I accept that the causal link between the statements made to Detective Melnick and the Charter breaches is, in the circumstances, not particularly strong. However, the force of the causal connection between the breach and the compromised evidence is only one factor to be taken into account in assessing the impact of the Charter breach on the accused’s Charter-protected interests: Beaver, at para. 125.
[153] Detective Melnick based his belief that the appellant was not detained on his perception that he and the appellant had a good relationship during the interview. The appellant was cooperative and the interview was non-adversarial. Detective Melnick’s subjective belief about his relationship with the appellant was not determinative of the appellant’s status. Detective Melnick was obliged, as an experienced officer, to make an objective assessment of the entirety of the circumstances, bearing in mind the accused’s personal characteristics. It is difficult to accept that anyone looking at the situation in the interview room from an objective perspective would not, at the very least, conclude that the appellant’s circumstances were sufficiently uncertain to call for some clarification by the police as to his status. Detective Melnick’s failure to do anything to clarify the appellant’s status as they sat in the interview room suggests, either that he had a material misunderstanding of the nature of a detention, or he preferred to avoid the topic unless, and until the appellant raised it.
[154] I would not characterize Detective Melnick’s failure to comply with his Charter obligations as wilful, or even reckless. His failure to advise the appellant that he was detained, and could contact counsel was, however, an unreasonable error in respect of what is a fundamental police power and obligation. The error is not indicative of “good faith”: Tim, at paras. 84-85.
[155] In summary, the breaches of ss. 9 and 10 of the Charter that occurred when the interview began at about 5:50 p.m. only exacerbated the seriousness of the Charter-infringing conduct identified by the trial judge as occurring after about 7:40 p.m. The impact of the breaches beginning at 5:50 p.m. on the appellant’s Charter– protected interests, also rendered more serious the overall impact of the breaches which occurred while he was in the police interview room. Exclusion of the statements made between 5:50 p.m. and about 7:40 p.m. does remove some additional reliable evidence from the Crown’s case. There remains, however, significant evidence of the appellant’s fabrication of the Robbery Story.
[156] The s. 24(2) calculus, as applied to the breaches beginning at 5:50 p.m., is essentially the same as the trial judge’s analysis. The first two Grant factors favour exclusion of the statements made between 5:50 p.m. and at about 7:40 p.m. The third Grant factor favours, although not strongly, the admission of the evidence. As with the statements made after about 7:40 p.m., the balancing of the factors favours the exclusion of the statements made between 5:50 p.m. and about 7:40 p.m.
CONCLUSION
[172] The failure to exclude the statements taken by Detective Melnick at the station on February 19 before 7:45 p.m. is an error in law. In their factum, Crown counsel, in support of the argument that the statements made before about 7:40 p.m. should be admitted, described those statements as “powerful post-offence conduct evidence that seriously undermines the appellant’s self-defence claim”. Given that position, it is not surprising that the Crown does not rely on the curative proviso to overcome the legal error made by the trial judge.
[173] The appeal is allowed. The conviction is quashed and a new trial is ordered on the charge of second degree murder.
R v Corner, 2023 ONCA 509
[July 27, 2023] NCRMD – Knowledge of Morality of Act [Justice Mayer]
AUTHOR’S NOTE: Statements given in police stations have recently received attention by appellant courts including the SCC. This decision is a positive development in the recognition that “witness” status in the eyes of the police doesn’t necessarily line up with an objective assessment of the person’s detention. Control over the movements and property of the “witness” is key. Much of commentary in this case can be applied to other cases of interviews that turn into detention. The underlying picture here, as in most such cases, appears to be an either reckless indifference by the interviewer to the facts known to police or an intentional obfuscation of the actual status of the accused. When looked at in full context it is obvious that most police station interviews are very conducive to a finding of detention but for deliberate efforts by police to let the person know they are free to move about and free to leave.
OVERVIEW
[1] The appellant, a drug dealer, shot and killed his friend and drug dealing partner, Shabir Niazi. The shooting occurred in the late afternoon of February 19, 2014, in the garage of the home of the appellant’s parents. The appellant lived with his parents.
[2] In the minutes, hours, days, and weeks that followed the homicide, the appellant told a friend, the 9-1-1 operator, other friends, family members, family members of Mr. Niazi, and several police officers, that Mr. Niazi had been shot and killed during a “drug rip off”. The appellant told different versions of this story, some more detailed than others. In essence, he indicated that several men had burst into the garage intent upon stealing the marihuana that he and Mr. Niazi stored there. The robbers pistol whipped the appellant and shot and killed Mr. Niazi before fleeing the scene. I will refer to the various versions of this narrative as the “Robbery Story”. Not only did the appellant repeatedly tell the Robbery Story, but on February 26, 2014, seven days after the homicide, the appellant placed an anonymous call to the Crime Stoppers tip line, reporting that he had seen four men fleeing the scene of the homicide.
3] Within days of the homicide, the police located the gun used to kill Mr. Niazi. The appellant had hidden the gun in a wooded area near his home, along with the sweater that he was wearing at the time of the shooting.
[4] By the time of trial, the appellant had abandoned the Robbery Story. As he recalled the events at trial, he had shot and killed Mr. Niazi in self-defence….
[5] The autopsy revealed that Mr. Niazi was hit with at least eight shots. Three of the bullets entered his head, one entered from the back of his head and travelled through the brain. A fourth bullet went through Mr. Niazi’s heart.
[6] The appellant explained that he repeatedly told the false Robbery Story because he feared retaliation from Mr. Niazi’s family, if he admitted killing Mr. Niazi.
[7] …For the reasons that follow, I would hold that the trial judge erred in admitting some of the statements made by the appellant to the police. I would allow the appeal and direct a new trial.
THE CONVICTION APPEAL
- Did the trial judge err in admitting the appellant’s statements to the police made on February 19, 2014, the day of the homicide, and on March 1, 2014, the day of the appellant’s arrest?
C. The admissibility of the appellant’s statements
(i) Overview
[44] At trial, the Crown tendered statements made by the appellant to police officers on February 19, the day of the homicide, and on March 1-2, after the appellant’s arrest on the murder charge. The statements made by the appellant all repeated, with varying levels of detail, the Robbery Story that the appellant had told the 9-1-1 operator, his friends, family members, and family members of Mr. Niazi. In none of the statements did the appellant admit any responsibility for Mr. Niazi’s death, suggest that he had been assaulted by Mr. Niazi, or that he killed Mr. Niazi in self-defence.
[45] In his evidence, the appellant indicated that the Robbery Story was false. He had shot and killed Mr. Niazi in self-defence. The Crown argued that the timing and repetition of the false and sometimes very detailed Robbery Story, coupled with the appellant’s false “tip” to Crime Stoppers, constituted evidence from which a jury could infer that the appellant had not acted in self-defence when he killed Mr. Niazi. The Crown further submitted that the statements were admissible to challenge the credibility of the appellant’s evidence should he testify that he acted in self-defence.
[46] The statements made by the appellant fall into three groups:
- Statements made to Constable Micallef and Constable MacKinnon at the scene of the homicide on February 19, 2014 between about 4:30 p.m. and about 5:00 p.m.
- Statements made during an interview with Detective Melnick at 19 Division on February 19, 2014, beginning at about 5:50 p.m. and carrying on until about 3:00 a.m. the next morning;
- Statements made to Detective Horrocks on March 1, 2014, after the appellant was arrested and charged with murder, and on March 2 when Detective Horrocks spoke with the appellant in the cells.
(ii) The relevant Charter provisions
(iii) The proceedings at trial
[49] In his ruling, the trial judge held that all of the statements made to Constables Micallef and MacKinnon at the scene of the homicide were admissible. He broke the statement made to Detective Melnick at 19 Division down into two parts. The trial judge held that the first part of the statement, commencing at 5:50 p.m. and ending at about 7:40 p.m., was admissible. However, the second part of the statement, beginning at about 7:40 p.m. and continuing until 3:00 a.m., was obtained in violation of the appellant’s Charter rights and was excluded under s. 24(2) of the Charter. The trial judge divided the statements made by the appellant to Detective Horrocks on March 1 into three parts. He ruled the first two parts admissible, and the third part involuntary and inadmissible. The trial judge also excluded the March 2 statement as involuntary on the basis that it was closely connected to the involuntary portion of the March 1 statement.
[104] The trial judge correctly laid out the law applicable to detention for the purposes of s. 9 of the Charter. His findings of fact relevant to the interaction between the appellant and the police at the scene reveal no material misapprehension of the evidence, and are not unreasonable. His finding that the appellant was not detained at the scene should stand. It follows that the rights in s. 10 of the Charter were not engaged. There was no Charter breach at the scene.
(vi) The Statement at 19 Division
(a) The Evidence
[105] Constable MacKinnon and the appellant proceeded to 19 Division. They entered through the front door and Constable MacKinnon took the appellant directly to what he referred to as a “soft interview room”. According to the police evidence, this room was used for questioning witnesses and was less spartan than the rooms used for questioning persons under arrest.
[106] Once the appellant was in the interview room, which is a non-public part of the police station, he was not free to move about the rest of the police station or come and go as he pleased. If he wanted to use the washroom, go outside, or go back to the general waiting area to speak to the other individuals in the waiting room, the appellant needed the permission of the police to leave the interview room and pass through the non-public part of the police station. With the exception of a brief visit with his parents in the early morning hours of February 20, only police officers came and went from the interview room in which the appellant was seated for almost ten hours.
[107] Although the evidence is not entirely clear, at some time shortly after the appellant arrived at 19 Division and before he went into the interview room, the police obtained his cellphone and wallet. Constable MacKinnon could not recall whether he had asked the appellant for his wallet and cellphone, but acknowledged that he may have done so.
[108] Because the appellant did not testify, there is no evidence from him as to how the police came to be in possession of his wallet and cellphone, or why they wanted these items. I cannot, however, accept the suggestion that the appellant may have asked the police to hold onto his wallet and cellphone. There is no evidence that he gave his cellphone and wallet to the police, and it makes no sense, that having gone to the police station to give a statement, the appellant would ask the police to take possession of his wallet and cellphone. The police eventually returned the appellant’s wallet to him the next morning when he left the station at 3:00 a.m. They kept his cellphone.
[109] By the time Detective Melnick joined the appellant in the interview room at about 5:50 p.m., the homicide investigation was moving forward on several fronts. Detective Melnick was aware that the appellant was a drug dealer and believed by the police to possess firearms. He also knew that the police were investigating the appellant’s residence as a crime scene and intended to test the appellant’s hands for gunshot residue. According to Detective Melnick, this was standard practice for anyone who had been at the scene of a shooting. Detective Melnick testified that he was not aware that the police were in the process of obtaining a search warrant for the appellant’s home.
[110] Before Detective Melnick began the interview, the police offered to get the appellant some food. The appellant was not told that he could go and get his own food and return to the interview if he so wished. The appellant placed his food order through the police and dinner was delivered to him while he was sitting in the interview room. He ate it while being questioned by Detective Melnick.
[111] Detective Melnick maintained that when he began the interview, he considered the appellant a witness only and, therefore, had a KGB caution administered. In the caution, the appellant acknowledged that he was under an obligation to tell the truth during the questioning. Detective Melnick asked the appellant, “what brings you to the police station?”. He followed up with, “what happened?”. The appellant responded with a detailed version of the Robbery Story, complete with descriptions of the assailants, background information about his drug dealings, and a list of various enemies that he and Mr. Niazi had made over the years in the drug business. Detective Melnick testified that he had a “great rapport” with the appellant and thought that they were “pretty comfortable with each other”. The atmosphere in this first part of the interview was not adversarial and Detective Melnick’s questions were not accusatory.
[112] At no time before 7:40 p.m. did Detective Melnick tell the appellant that he had a right to remain silent, a right to speak with counsel, or a right to discontinue the interview and leave the police station if he so wished. Nor did Detective Melnick advise the appellant that the police intended to test his hands for gunshot residue, or that his residence was considered a crime scene. According to Detective Melnick, he did none of these things because he viewed the appellant as a witness and not a suspect, and did not think the appellant was detained.
[113] At about 7:40 p.m., Detective Melnick appeared to be in the process of winding down the interview with the appellant. He asked the appellant to take a minute and think if there was anything that he had forgotten to tell him. The appellant replied, “Is there somewhere I could walk around while I think”. The Detective replied, “I can’t really let you leave”.
[114] The appellant then requested permission to use the bathroom. Detective Melnick told him that he could use the bathroom, but could not wash his hands, presumably because the police had not yet tested his hands for gunshot residue. Detective Melnick took the appellant to the bathroom and kept him under observation while he was there.
[115] Detective Melnick returned the appellant to the interview room after the appellant had finished in the bathroom. The appellant was not asked whether he had anything else to say, nor was he invited to leave the station if he did not. Instead, he was left sitting in the interview room while Detective Melnick received an update on the ongoing investigation from his colleagues. While the appellant was sitting in the interview room waiting for Detective Melnick to return, another officer entered the room and performed a gunshot residue test. She did not ask the appellant’s permission to perform the test and did not tell him he could refuse to submit to the test. This officer believed that the appellant was under arrest at the time.
[116] When Detective Melnick returned to the interview room some time later, his attitude toward the appellant had changed. He confronted the appellant with inconsistencies between the appellant’s statements and information that had been provided by other witnesses. Detective Melnick made it clear to the appellant that he did not believe the Robbery Story that the appellant had earlier told him.
[117] Detective Melnick told the appellant that he had a right to remain silent and that anything he said would be admissible in court. He also told the appellant that he had a right to speak to a lawyer. Detective Melnick, however, linked both the right to silence and the right to a lawyer to a potential obstruction of justice charge should the appellant be lying to him. Detective Melnick did not caution the appellant or provide him with his right to counsel in respect of the homicide.
[118] Throughout the rest of the interview, Detective Melnick insisted that the appellant was not telling the truth about what happened. In the face of Detective Melnick’s persistent questioning, the appellant changed some of the details of the Robbery Story, but otherwise maintained that story. A second detective joined Detective Melnick during the interview. That detective assumed a confrontational attitude toward the appellant. He asked the appellant flat out, “[d]id you shoot him?” The appellant insisted that he had not.
[119] The appellant remained in the interview room for several more hours. He was allowed to leave the station at about 3:00 a.m. Detective Melnick told the appellant that the police were keeping his clothing. He also asked the appellant for his cellphone number. The police already had his cellphone.
[120] Detective Melnick insisted that throughout this entire process, he regarded the appellant as a witness and did not consider the appellant to be detained.
(b) Was the appellant detained at 19 Division before about 7:40 p.m. on February 19?
[121] The appellant arrived at 19 Division sometime shortly after 5:00 p.m. with Constable MacKinnon. Constable MacKinnon escorted him directly into an interview room in the non-public part of the police station. Other potential witnesses were sitting in the public waiting area of the station. For the next ten hours, until 3:00 a.m. the next morning, the police maintained total control over the appellant. With one brief exception for a supervised visit to a washroom, and a second exception for a brief visit with his parents, the appellant remained in a police interview room exclusively in the company of police officers for ten hours.
[122] The trial judge found, and his finding is not challenged on appeal, that the appellant was detained for most of the time that he was in the interview room. On the trial judge’s finding, the detention began at about 7:40 p.m., almost two hours after the interview with Detective Melnick began, and about seven hours before he was released from the interview room.
[123] Counsel for the appellant submits that the trial judge wrongly held that the appellant was not detained for the first two hours that he was in the interview room…
[124] I agree with the submissions of counsel for the appellant. The totality of the circumstances compels the conclusion that the appellant was detained from the time he was placed in the interview room.
[125] The total control by the police of an individual and the isolation of that individual from non-police personnel will often generate the kind of power imbalance that would cause a reasonable person to believe that he is no longer free to come and go as he pleases: Grant, at paras. 21-22, 44; Le, at para. 50; and Lafrance, at paras. 43-51. This is especially true when the police do and say nothing to dispel the perception flowing from that power imbalance.
[126] On the evidence, the police had total control of the appellant from the time he entered the police station. They immediately isolated him from all non-police personnel. He was never told that he had any choice in the matter. The police control extended to what he would eat, when he would eat it, and when he would be allowed to go to the bathroom.
[127] The total control that the police had assumed over the appellant while he was in the interview room is made clear from the exchange between the appellant and Detective Melnick at about 7:40 p.m. The appellant indicated that he would like to take the opportunity to walk around and think before continuing with the interview. Detective Melnick said “I can’t really let you leave”. While the Crown suggests that this is an indication only that the appellant could not move around in the non-public part of the police station, Detective Melnick’s comment is not qualified in any way. Surely, had Detective Melnick intended to tell the appellant that, while he could not walk around in the non-public part of the police station, he could leave the building and go wherever he wanted to go, Detective Melnick would have told the appellant exactly that.
[128] Detective Melnick’s indication to the appellant that he could only go to the washroom under police supervision is a further indication of the total control that the police had assumed over the appellant.
[129] The exchange between Detective Melnick and the appellant at about 7:40 p.m. also sheds light on the appellant’s perception of his situation. He believed that he needed permission from the police to leave the interview room and that he also needed permission to go to the bathroom. While the individual’s perceptions are not determinative of the detention question, they can shed some light on how a reasonable person in the individual’s circumstances would perceive his situation: Grant, at para. 32; Le, at para. 113.
[130] The trial judge interpreted the words of Detective Melnick as indicating that the appellant’s right “to leave the police station had ended” at about 7:40 p.m. With respect, this is an unreasonable inference from the evidence. Nothing in the evidence suggests that Detective Melnick would not have made exactly the same statement had the appellant indicated that he wanted to leave the interview room at any time between 5:50 p.m. and about 7:40 p.m. The only reasonable inference is that Detective Melnick was not prepared to allow the appellant to leave the interview room unattended by the police at any time until Detective Melnick was finished questioning him. It is mere happenstance that the appellant made the request which precipitated Detective Melnick’s clear indication that the appellant was not free to leave the interview room at about 7:40 p.m., as opposed to some earlier time in the interview.
[131] The evidence also indicates that the police no longer regarded the appellant as simply an eyewitness with information to provide. Their investigation was expanding to include the appellant. The decision to test the appellant’s hands for gunshot residue, the decision to keep the appellant’s cellphone and wallet, the decision to treat his residence as a crime scene, and the decision to seek a search warrant for his residence, all imply that the police had come to see the appellant as at least potentially involved in the homicide. To some extent at least, the police efforts had turned to gathering evidence potentially relevant to the appellant’s possible involvement in the homicide. [Emphasis by PJM]
[132] The decision to test the appellant’s hands for gunshot residue is an indication that the appellant was no longer regarded as simply an eyewitness. The decision to test for gunshot residue is also significant to the question of detention in a second way. Clearly, the police were going to test the appellant for gunshot residue and had no intention of asking his permission. Equally clear, there was no point in testing for gunshot residue unless the police maintained control over the appellant’s movements until the test was performed. The police decision to test the appellant for gunshot residue ensured that he would not be free to leave the police station, at least until the test was completed.
[134] The evidentiary significance of the police possession of the appellant’s wallet and cellphone did not depend on whether the police had seized the wallet and cellphone. There is no question that the police had the wallet and cellphone from the time that the appellant entered the interview room until 3:00 a.m. the next morning. While the absence of evidence from the police or the appellant makes it impossible to say exactly how the police came to possess the cellphone and wallet, the only reasonable inference is that the police acquired the cellphone and wallet as a result of a police initiative. The appellant did not offer the police his wallet and cellphone.
[135] The police possession of the appellant’s cellphone suggests an interest in his movements and communications prior to and after the homicide. In addition, by taking possession of the appellant’s cellphone and wallet, objects most people would regard as their most important personal property, the police further secured their control over the appellant and his isolation from others while he was in the interview room.
[136] Detective Melnick’s actions as the interview appeared to be winding down at about 7:40 p.m. are a further indication that the appellant was not free to leave the interview room while being questioned. Detective Melnick appeared to have finished his questions. He did not, however, advise the appellant that he could leave if he had nothing more to tell the police. Instead, he left the appellant sitting in the interview room while he went to confer with his colleagues who were involved in the ongoing investigation. After some time, Detective Melnick returned to the interview room where the appellant had been sitting waiting for him. Detective Melnick was armed with many more questions and a different attitude.
[137] …The detention inquiry is concerned with the impact of the totality of the circumstances, including the police conduct on the perception of a reasonable person in the accused’s circumstances: Grant, at para. 32; Le, at para. 116.
[138] For example, it may have made sense from the police perspective to take the appellant directly to an interview room rather than allowing him to sit in the public area of the police station with other potential witnesses. Nonetheless, the police conduct would certainly contribute to a sense of isolation and lack of control that a reasonable person in the shoes of the appellant would feel as he was escorted past other potential witnesses and directly into the non-public area of the police station. It would, of course, be open to the police to explain to someone in the appellant’s position why he was being taken directly to an interview room. That explanation, if offered, could offset, to some degree at least, the sense of isolation and lack of control that the reasonable person in those circumstances would otherwise experience.
[139] … A reasonable young person with a history of adversarial interactions with the police would feel, with particular force, the isolation, control, and police domination flowing from the treatment afforded to the appellant at the police station. A reasonable person, fixed with those personal characteristics, might well conclude that he was going nowhere until the police were finished questioning him. I would add that had the trial judge been made aware of the appellant’s Indigeneity, that, too, would have been material to whether the appellant was detained during the first part of the interview with Detective Melnick. [Emphasis by PJM]
[140] In summary, the police assumed total and exclusive control over the appellant from the time he arrived at the police station. They relinquished that control only some ten hours later when the appellant left the station. That control was clearly designed to isolate the appellant from anyone other than the police while the police were engaged in taking various investigative measures, some of which targeted at the appellant. The police never told the appellant that he was free to leave the police station if he wished to do so.
[141] The appellant was detained within the meaning of s. 9 of the Charter from the time he entered the interview room. The appellant was not informed of the reason for his detention, advised of his right to counsel, or given an opportunity to exercise that right. Consequently, his rights under ss. 10(a) and 10(b) of the Charter were also infringed.
(c) Should the statements made at 19 Division to Detective Melnick before about 7:40 p.m. be excluded under s. 24(2)?
[149] It is not unreasonable to think that, had the police complied with their obligations under s. 10 of the Charter, the appellant may have contacted counsel and after advice from counsel, at least asked Detective Melnick whether he was required to remain at the station. Assuming Detective Melnick would have taken the same position with the appellant that he ultimately took on the witness stand, Detective Melnick would have told the appellant that he was not detained and had no obligation to stay at the police station. On this scenario, the unlawful restriction on the appellant’s liberty would have ended relatively shortly after he arrived at the police station, and before he was put at risk of speaking to the police about the homicide without the advice of counsel and potentially incriminating himself in the responses he gave.
[151] I accept that the causal link between the statements made to Detective Melnick and the Charter breaches is, in the circumstances, not particularly strong. However, the force of the causal connection between the breach and the compromised evidence is only one factor to be taken into account in assessing the impact of the Charter breach on the accused’s Charter-protected interests: Beaver, at para. 125.
[153] Detective Melnick based his belief that the appellant was not detained on his perception that he and the appellant had a good relationship during the interview. The appellant was cooperative and the interview was non-adversarial. Detective Melnick’s subjective belief about his relationship with the appellant was not determinative of the appellant’s status. Detective Melnick was obliged, as an experienced officer, to make an objective assessment of the entirety of the circumstances, bearing in mind the accused’s personal characteristics. It is difficult to accept that anyone looking at the situation in the interview room from an objective perspective would not, at the very least, conclude that the appellant’s circumstances were sufficiently uncertain to call for some clarification by the police as to his status. Detective Melnick’s failure to do anything to clarify the appellant’s status as they sat in the interview room suggests, either that he had a material misunderstanding of the nature of a detention, or he preferred to avoid the topic unless, and until the appellant raised it.
[154] I would not characterize Detective Melnick’s failure to comply with his Charter obligations as wilful, or even reckless. His failure to advise the appellant that he was detained, and could contact counsel was, however, an unreasonable error in respect of what is a fundamental police power and obligation. The error is not indicative of “good faith”: Tim, at paras. 84-85.
[155] In summary, the breaches of ss. 9 and 10 of the Charter that occurred when the interview began at about 5:50 p.m. only exacerbated the seriousness of the Charter-infringing conduct identified by the trial judge as occurring after about 7:40 p.m. The impact of the breaches beginning at 5:50 p.m. on the appellant’s Charter– protected interests, also rendered more serious the overall impact of the breaches which occurred while he was in the police interview room. Exclusion of the statements made between 5:50 p.m. and about 7:40 p.m. does remove some additional reliable evidence from the Crown’s case. There remains, however, significant evidence of the appellant’s fabrication of the Robbery Story.
[156] The s. 24(2) calculus, as applied to the breaches beginning at 5:50 p.m., is essentially the same as the trial judge’s analysis. The first two Grant factors favour exclusion of the statements made between 5:50 p.m. and at about 7:40 p.m. The third Grant factor favours, although not strongly, the admission of the evidence. As with the statements made after about 7:40 p.m., the balancing of the factors favours the exclusion of the statements made between 5:50 p.m. and about 7:40 p.m.
CONCLUSION
[172] The failure to exclude the statements taken by Detective Melnick at the station on February 19 before 7:45 p.m. is an error in law. In their factum, Crown counsel, in support of the argument that the statements made before about 7:40 p.m. should be admitted, described those statements as “powerful post-offence conduct evidence that seriously undermines the appellant’s self-defence claim”. Given that position, it is not surprising that the Crown does not rely on the curative proviso to overcome the legal error made by the trial judge.
[173] The appeal is allowed. The conviction is quashed and a new trial is ordered on the charge of second degree murder.
R v Corner, 2023 ONCA 509
[July 27, 2023] NCRMD – Knowledge of Morality of Act [Justice Mayer]
AUTHOR’S NOTE: Statements given in police stations have recently received attention by appellant courts including the SCC. This decision is a positive development in the recognition that “witness” status in the eyes of the police doesn’t necessarily line up with an objective assessment of the person’s detention. Control over the movements and property of the “witness” is key. Much of commentary in this case can be applied to other cases of interviews that turn into detention. The underlying picture here, as in most such cases, appears to be an either reckless indifference by the interviewer to the facts known to police or an intentional obfuscation of the actual status of the accused. When looked at in full context it is obvious that most police station interviews are very conducive to a finding of detention but for deliberate efforts by police to let the person know they are free to move about and free to leave.
OVERVIEW
[1] The appellant, a drug dealer, shot and killed his friend and drug dealing partner, Shabir Niazi. The shooting occurred in the late afternoon of February 19, 2014, in the garage of the home of the appellant’s parents. The appellant lived with his parents.
[2] In the minutes, hours, days, and weeks that followed the homicide, the appellant told a friend, the 9-1-1 operator, other friends, family members, family members of Mr. Niazi, and several police officers, that Mr. Niazi had been shot and killed during a “drug rip off”. The appellant told different versions of this story, some more detailed than others. In essence, he indicated that several men had burst into the garage intent upon stealing the marihuana that he and Mr. Niazi stored there. The robbers pistol whipped the appellant and shot and killed Mr. Niazi before fleeing the scene. I will refer to the various versions of this narrative as the “Robbery Story”. Not only did the appellant repeatedly tell the Robbery Story, but on February 26, 2014, seven days after the homicide, the appellant placed an anonymous call to the Crime Stoppers tip line, reporting that he had seen four men fleeing the scene of the homicide.
3] Within days of the homicide, the police located the gun used to kill Mr. Niazi. The appellant had hidden the gun in a wooded area near his home, along with the sweater that he was wearing at the time of the shooting.
[4] By the time of trial, the appellant had abandoned the Robbery Story. As he recalled the events at trial, he had shot and killed Mr. Niazi in self-defence….
[5] The autopsy revealed that Mr. Niazi was hit with at least eight shots. Three of the bullets entered his head, one entered from the back of his head and travelled through the brain. A fourth bullet went through Mr. Niazi’s heart.
[6] The appellant explained that he repeatedly told the false Robbery Story because he feared retaliation from Mr. Niazi’s family, if he admitted killing Mr. Niazi.
[7] …For the reasons that follow, I would hold that the trial judge erred in admitting some of the statements made by the appellant to the police. I would allow the appeal and direct a new trial.
THE CONVICTION APPEAL
- Did the trial judge err in admitting the appellant’s statements to the police made on February 19, 2014, the day of the homicide, and on March 1, 2014, the day of the appellant’s arrest?
C. The admissibility of the appellant’s statements
(i) Overview
[44] At trial, the Crown tendered statements made by the appellant to police officers on February 19, the day of the homicide, and on March 1-2, after the appellant’s arrest on the murder charge. The statements made by the appellant all repeated, with varying levels of detail, the Robbery Story that the appellant had told the 9-1-1 operator, his friends, family members, and family members of Mr. Niazi. In none of the statements did the appellant admit any responsibility for Mr. Niazi’s death, suggest that he had been assaulted by Mr. Niazi, or that he killed Mr. Niazi in self-defence.
[45] In his evidence, the appellant indicated that the Robbery Story was false. He had shot and killed Mr. Niazi in self-defence. The Crown argued that the timing and repetition of the false and sometimes very detailed Robbery Story, coupled with the appellant’s false “tip” to Crime Stoppers, constituted evidence from which a jury could infer that the appellant had not acted in self-defence when he killed Mr. Niazi. The Crown further submitted that the statements were admissible to challenge the credibility of the appellant’s evidence should he testify that he acted in self-defence.
[46] The statements made by the appellant fall into three groups:
- Statements made to Constable Micallef and Constable MacKinnon at the scene of the homicide on February 19, 2014 between about 4:30 p.m. and about 5:00 p.m.
- Statements made during an interview with Detective Melnick at 19 Division on February 19, 2014, beginning at about 5:50 p.m. and carrying on until about 3:00 a.m. the next morning;
- Statements made to Detective Horrocks on March 1, 2014, after the appellant was arrested and charged with murder, and on March 2 when Detective Horrocks spoke with the appellant in the cells.
(ii) The relevant Charter provisions
(iii) The proceedings at trial
[49] In his ruling, the trial judge held that all of the statements made to Constables Micallef and MacKinnon at the scene of the homicide were admissible. He broke the statement made to Detective Melnick at 19 Division down into two parts. The trial judge held that the first part of the statement, commencing at 5:50 p.m. and ending at about 7:40 p.m., was admissible. However, the second part of the statement, beginning at about 7:40 p.m. and continuing until 3:00 a.m., was obtained in violation of the appellant’s Charter rights and was excluded under s. 24(2) of the Charter. The trial judge divided the statements made by the appellant to Detective Horrocks on March 1 into three parts. He ruled the first two parts admissible, and the third part involuntary and inadmissible. The trial judge also excluded the March 2 statement as involuntary on the basis that it was closely connected to the involuntary portion of the March 1 statement.
[104] The trial judge correctly laid out the law applicable to detention for the purposes of s. 9 of the Charter. His findings of fact relevant to the interaction between the appellant and the police at the scene reveal no material misapprehension of the evidence, and are not unreasonable. His finding that the appellant was not detained at the scene should stand. It follows that the rights in s. 10 of the Charter were not engaged. There was no Charter breach at the scene.
(vi) The Statement at 19 Division
(a) The Evidence
[105] Constable MacKinnon and the appellant proceeded to 19 Division. They entered through the front door and Constable MacKinnon took the appellant directly to what he referred to as a “soft interview room”. According to the police evidence, this room was used for questioning witnesses and was less spartan than the rooms used for questioning persons under arrest.
[106] Once the appellant was in the interview room, which is a non-public part of the police station, he was not free to move about the rest of the police station or come and go as he pleased. If he wanted to use the washroom, go outside, or go back to the general waiting area to speak to the other individuals in the waiting room, the appellant needed the permission of the police to leave the interview room and pass through the non-public part of the police station. With the exception of a brief visit with his parents in the early morning hours of February 20, only police officers came and went from the interview room in which the appellant was seated for almost ten hours.
[107] Although the evidence is not entirely clear, at some time shortly after the appellant arrived at 19 Division and before he went into the interview room, the police obtained his cellphone and wallet. Constable MacKinnon could not recall whether he had asked the appellant for his wallet and cellphone, but acknowledged that he may have done so.
[108] Because the appellant did not testify, there is no evidence from him as to how the police came to be in possession of his wallet and cellphone, or why they wanted these items. I cannot, however, accept the suggestion that the appellant may have asked the police to hold onto his wallet and cellphone. There is no evidence that he gave his cellphone and wallet to the police, and it makes no sense, that having gone to the police station to give a statement, the appellant would ask the police to take possession of his wallet and cellphone. The police eventually returned the appellant’s wallet to him the next morning when he left the station at 3:00 a.m. They kept his cellphone.
[109] By the time Detective Melnick joined the appellant in the interview room at about 5:50 p.m., the homicide investigation was moving forward on several fronts. Detective Melnick was aware that the appellant was a drug dealer and believed by the police to possess firearms. He also knew that the police were investigating the appellant’s residence as a crime scene and intended to test the appellant’s hands for gunshot residue. According to Detective Melnick, this was standard practice for anyone who had been at the scene of a shooting. Detective Melnick testified that he was not aware that the police were in the process of obtaining a search warrant for the appellant’s home.
[110] Before Detective Melnick began the interview, the police offered to get the appellant some food. The appellant was not told that he could go and get his own food and return to the interview if he so wished. The appellant placed his food order through the police and dinner was delivered to him while he was sitting in the interview room. He ate it while being questioned by Detective Melnick.
[111] Detective Melnick maintained that when he began the interview, he considered the appellant a witness only and, therefore, had a KGB caution administered. In the caution, the appellant acknowledged that he was under an obligation to tell the truth during the questioning. Detective Melnick asked the appellant, “what brings you to the police station?”. He followed up with, “what happened?”. The appellant responded with a detailed version of the Robbery Story, complete with descriptions of the assailants, background information about his drug dealings, and a list of various enemies that he and Mr. Niazi had made over the years in the drug business. Detective Melnick testified that he had a “great rapport” with the appellant and thought that they were “pretty comfortable with each other”. The atmosphere in this first part of the interview was not adversarial and Detective Melnick’s questions were not accusatory.
[112] At no time before 7:40 p.m. did Detective Melnick tell the appellant that he had a right to remain silent, a right to speak with counsel, or a right to discontinue the interview and leave the police station if he so wished. Nor did Detective Melnick advise the appellant that the police intended to test his hands for gunshot residue, or that his residence was considered a crime scene. According to Detective Melnick, he did none of these things because he viewed the appellant as a witness and not a suspect, and did not think the appellant was detained.
[113] At about 7:40 p.m., Detective Melnick appeared to be in the process of winding down the interview with the appellant. He asked the appellant to take a minute and think if there was anything that he had forgotten to tell him. The appellant replied, “Is there somewhere I could walk around while I think”. The Detective replied, “I can’t really let you leave”.
[114] The appellant then requested permission to use the bathroom. Detective Melnick told him that he could use the bathroom, but could not wash his hands, presumably because the police had not yet tested his hands for gunshot residue. Detective Melnick took the appellant to the bathroom and kept him under observation while he was there.
[115] Detective Melnick returned the appellant to the interview room after the appellant had finished in the bathroom. The appellant was not asked whether he had anything else to say, nor was he invited to leave the station if he did not. Instead, he was left sitting in the interview room while Detective Melnick received an update on the ongoing investigation from his colleagues. While the appellant was sitting in the interview room waiting for Detective Melnick to return, another officer entered the room and performed a gunshot residue test. She did not ask the appellant’s permission to perform the test and did not tell him he could refuse to submit to the test. This officer believed that the appellant was under arrest at the time.
[116] When Detective Melnick returned to the interview room some time later, his attitude toward the appellant had changed. He confronted the appellant with inconsistencies between the appellant’s statements and information that had been provided by other witnesses. Detective Melnick made it clear to the appellant that he did not believe the Robbery Story that the appellant had earlier told him.
[117] Detective Melnick told the appellant that he had a right to remain silent and that anything he said would be admissible in court. He also told the appellant that he had a right to speak to a lawyer. Detective Melnick, however, linked both the right to silence and the right to a lawyer to a potential obstruction of justice charge should the appellant be lying to him. Detective Melnick did not caution the appellant or provide him with his right to counsel in respect of the homicide.
[118] Throughout the rest of the interview, Detective Melnick insisted that the appellant was not telling the truth about what happened. In the face of Detective Melnick’s persistent questioning, the appellant changed some of the details of the Robbery Story, but otherwise maintained that story. A second detective joined Detective Melnick during the interview. That detective assumed a confrontational attitude toward the appellant. He asked the appellant flat out, “[d]id you shoot him?” The appellant insisted that he had not.
[119] The appellant remained in the interview room for several more hours. He was allowed to leave the station at about 3:00 a.m. Detective Melnick told the appellant that the police were keeping his clothing. He also asked the appellant for his cellphone number. The police already had his cellphone.
[120] Detective Melnick insisted that throughout this entire process, he regarded the appellant as a witness and did not consider the appellant to be detained.
(b) Was the appellant detained at 19 Division before about 7:40 p.m. on February 19?
[121] The appellant arrived at 19 Division sometime shortly after 5:00 p.m. with Constable MacKinnon. Constable MacKinnon escorted him directly into an interview room in the non-public part of the police station. Other potential witnesses were sitting in the public waiting area of the station. For the next ten hours, until 3:00 a.m. the next morning, the police maintained total control over the appellant. With one brief exception for a supervised visit to a washroom, and a second exception for a brief visit with his parents, the appellant remained in a police interview room exclusively in the company of police officers for ten hours.
[122] The trial judge found, and his finding is not challenged on appeal, that the appellant was detained for most of the time that he was in the interview room. On the trial judge’s finding, the detention began at about 7:40 p.m., almost two hours after the interview with Detective Melnick began, and about seven hours before he was released from the interview room.
[123] Counsel for the appellant submits that the trial judge wrongly held that the appellant was not detained for the first two hours that he was in the interview room…
[124] I agree with the submissions of counsel for the appellant. The totality of the circumstances compels the conclusion that the appellant was detained from the time he was placed in the interview room.
[125] The total control by the police of an individual and the isolation of that individual from non-police personnel will often generate the kind of power imbalance that would cause a reasonable person to believe that he is no longer free to come and go as he pleases: Grant, at paras. 21-22, 44; Le, at para. 50; and Lafrance, at paras. 43-51. This is especially true when the police do and say nothing to dispel the perception flowing from that power imbalance.
[126] On the evidence, the police had total control of the appellant from the time he entered the police station. They immediately isolated him from all non-police personnel. He was never told that he had any choice in the matter. The police control extended to what he would eat, when he would eat it, and when he would be allowed to go to the bathroom.
[127] The total control that the police had assumed over the appellant while he was in the interview room is made clear from the exchange between the appellant and Detective Melnick at about 7:40 p.m. The appellant indicated that he would like to take the opportunity to walk around and think before continuing with the interview. Detective Melnick said “I can’t really let you leave”. While the Crown suggests that this is an indication only that the appellant could not move around in the non-public part of the police station, Detective Melnick’s comment is not qualified in any way. Surely, had Detective Melnick intended to tell the appellant that, while he could not walk around in the non-public part of the police station, he could leave the building and go wherever he wanted to go, Detective Melnick would have told the appellant exactly that.
[128] Detective Melnick’s indication to the appellant that he could only go to the washroom under police supervision is a further indication of the total control that the police had assumed over the appellant.
[129] The exchange between Detective Melnick and the appellant at about 7:40 p.m. also sheds light on the appellant’s perception of his situation. He believed that he needed permission from the police to leave the interview room and that he also needed permission to go to the bathroom. While the individual’s perceptions are not determinative of the detention question, they can shed some light on how a reasonable person in the individual’s circumstances would perceive his situation: Grant, at para. 32; Le, at para. 113.
[130] The trial judge interpreted the words of Detective Melnick as indicating that the appellant’s right “to leave the police station had ended” at about 7:40 p.m. With respect, this is an unreasonable inference from the evidence. Nothing in the evidence suggests that Detective Melnick would not have made exactly the same statement had the appellant indicated that he wanted to leave the interview room at any time between 5:50 p.m. and about 7:40 p.m. The only reasonable inference is that Detective Melnick was not prepared to allow the appellant to leave the interview room unattended by the police at any time until Detective Melnick was finished questioning him. It is mere happenstance that the appellant made the request which precipitated Detective Melnick’s clear indication that the appellant was not free to leave the interview room at about 7:40 p.m., as opposed to some earlier time in the interview.
[131] The evidence also indicates that the police no longer regarded the appellant as simply an eyewitness with information to provide. Their investigation was expanding to include the appellant. The decision to test the appellant’s hands for gunshot residue, the decision to keep the appellant’s cellphone and wallet, the decision to treat his residence as a crime scene, and the decision to seek a search warrant for his residence, all imply that the police had come to see the appellant as at least potentially involved in the homicide. To some extent at least, the police efforts had turned to gathering evidence potentially relevant to the appellant’s possible involvement in the homicide. [Emphasis by PJM]
[132] The decision to test the appellant’s hands for gunshot residue is an indication that the appellant was no longer regarded as simply an eyewitness. The decision to test for gunshot residue is also significant to the question of detention in a second way. Clearly, the police were going to test the appellant for gunshot residue and had no intention of asking his permission. Equally clear, there was no point in testing for gunshot residue unless the police maintained control over the appellant’s movements until the test was performed. The police decision to test the appellant for gunshot residue ensured that he would not be free to leave the police station, at least until the test was completed.
[134] The evidentiary significance of the police possession of the appellant’s wallet and cellphone did not depend on whether the police had seized the wallet and cellphone. There is no question that the police had the wallet and cellphone from the time that the appellant entered the interview room until 3:00 a.m. the next morning. While the absence of evidence from the police or the appellant makes it impossible to say exactly how the police came to possess the cellphone and wallet, the only reasonable inference is that the police acquired the cellphone and wallet as a result of a police initiative. The appellant did not offer the police his wallet and cellphone.
[135] The police possession of the appellant’s cellphone suggests an interest in his movements and communications prior to and after the homicide. In addition, by taking possession of the appellant’s cellphone and wallet, objects most people would regard as their most important personal property, the police further secured their control over the appellant and his isolation from others while he was in the interview room.
[136] Detective Melnick’s actions as the interview appeared to be winding down at about 7:40 p.m. are a further indication that the appellant was not free to leave the interview room while being questioned. Detective Melnick appeared to have finished his questions. He did not, however, advise the appellant that he could leave if he had nothing more to tell the police. Instead, he left the appellant sitting in the interview room while he went to confer with his colleagues who were involved in the ongoing investigation. After some time, Detective Melnick returned to the interview room where the appellant had been sitting waiting for him. Detective Melnick was armed with many more questions and a different attitude.
[137] …The detention inquiry is concerned with the impact of the totality of the circumstances, including the police conduct on the perception of a reasonable person in the accused’s circumstances: Grant, at para. 32; Le, at para. 116.
[138] For example, it may have made sense from the police perspective to take the appellant directly to an interview room rather than allowing him to sit in the public area of the police station with other potential witnesses. Nonetheless, the police conduct would certainly contribute to a sense of isolation and lack of control that a reasonable person in the shoes of the appellant would feel as he was escorted past other potential witnesses and directly into the non-public area of the police station. It would, of course, be open to the police to explain to someone in the appellant’s position why he was being taken directly to an interview room. That explanation, if offered, could offset, to some degree at least, the sense of isolation and lack of control that the reasonable person in those circumstances would otherwise experience.
[139] … A reasonable young person with a history of adversarial interactions with the police would feel, with particular force, the isolation, control, and police domination flowing from the treatment afforded to the appellant at the police station. A reasonable person, fixed with those personal characteristics, might well conclude that he was going nowhere until the police were finished questioning him. I would add that had the trial judge been made aware of the appellant’s Indigeneity, that, too, would have been material to whether the appellant was detained during the first part of the interview with Detective Melnick. [Emphasis by PJM]
[140] In summary, the police assumed total and exclusive control over the appellant from the time he arrived at the police station. They relinquished that control only some ten hours later when the appellant left the station. That control was clearly designed to isolate the appellant from anyone other than the police while the police were engaged in taking various investigative measures, some of which targeted at the appellant. The police never told the appellant that he was free to leave the police station if he wished to do so.
[141] The appellant was detained within the meaning of s. 9 of the Charter from the time he entered the interview room. The appellant was not informed of the reason for his detention, advised of his right to counsel, or given an opportunity to exercise that right. Consequently, his rights under ss. 10(a) and 10(b) of the Charter were also infringed.
(c) Should the statements made at 19 Division to Detective Melnick before about 7:40 p.m. be excluded under s. 24(2)?
[149] It is not unreasonable to think that, had the police complied with their obligations under s. 10 of the Charter, the appellant may have contacted counsel and after advice from counsel, at least asked Detective Melnick whether he was required to remain at the station. Assuming Detective Melnick would have taken the same position with the appellant that he ultimately took on the witness stand, Detective Melnick would have told the appellant that he was not detained and had no obligation to stay at the police station. On this scenario, the unlawful restriction on the appellant’s liberty would have ended relatively shortly after he arrived at the police station, and before he was put at risk of speaking to the police about the homicide without the advice of counsel and potentially incriminating himself in the responses he gave.
[151] I accept that the causal link between the statements made to Detective Melnick and the Charter breaches is, in the circumstances, not particularly strong. However, the force of the causal connection between the breach and the compromised evidence is only one factor to be taken into account in assessing the impact of the Charter breach on the accused’s Charter-protected interests: Beaver, at para. 125.
[153] Detective Melnick based his belief that the appellant was not detained on his perception that he and the appellant had a good relationship during the interview. The appellant was cooperative and the interview was non-adversarial. Detective Melnick’s subjective belief about his relationship with the appellant was not determinative of the appellant’s status. Detective Melnick was obliged, as an experienced officer, to make an objective assessment of the entirety of the circumstances, bearing in mind the accused’s personal characteristics. It is difficult to accept that anyone looking at the situation in the interview room from an objective perspective would not, at the very least, conclude that the appellant’s circumstances were sufficiently uncertain to call for some clarification by the police as to his status. Detective Melnick’s failure to do anything to clarify the appellant’s status as they sat in the interview room suggests, either that he had a material misunderstanding of the nature of a detention, or he preferred to avoid the topic unless, and until the appellant raised it.
[154] I would not characterize Detective Melnick’s failure to comply with his Charter obligations as wilful, or even reckless. His failure to advise the appellant that he was detained, and could contact counsel was, however, an unreasonable error in respect of what is a fundamental police power and obligation. The error is not indicative of “good faith”: Tim, at paras. 84-85.
[155] In summary, the breaches of ss. 9 and 10 of the Charter that occurred when the interview began at about 5:50 p.m. only exacerbated the seriousness of the Charter-infringing conduct identified by the trial judge as occurring after about 7:40 p.m. The impact of the breaches beginning at 5:50 p.m. on the appellant’s Charter– protected interests, also rendered more serious the overall impact of the breaches which occurred while he was in the police interview room. Exclusion of the statements made between 5:50 p.m. and about 7:40 p.m. does remove some additional reliable evidence from the Crown’s case. There remains, however, significant evidence of the appellant’s fabrication of the Robbery Story.
[156] The s. 24(2) calculus, as applied to the breaches beginning at 5:50 p.m., is essentially the same as the trial judge’s analysis. The first two Grant factors favour exclusion of the statements made between 5:50 p.m. and at about 7:40 p.m. The third Grant factor favours, although not strongly, the admission of the evidence. As with the statements made after about 7:40 p.m., the balancing of the factors favours the exclusion of the statements made between 5:50 p.m. and about 7:40 p.m.
CONCLUSION
[172] The failure to exclude the statements taken by Detective Melnick at the station on February 19 before 7:45 p.m. is an error in law. In their factum, Crown counsel, in support of the argument that the statements made before about 7:40 p.m. should be admitted, described those statements as “powerful post-offence conduct evidence that seriously undermines the appellant’s self-defence claim”. Given that position, it is not surprising that the Crown does not rely on the curative proviso to overcome the legal error made by the trial judge.
[173] The appeal is allowed. The conviction is quashed and a new trial is ordered on the charge of second degree murder.
R v Kahsai, 2023 SCC 20
[March 14, 2023] Proper role of the Amicus Curiae [Reasons by Karakatsanis J. with Wagner C.J., Côté, Rowe, Martin, Kasirer and Jamal JJ concurring]
AUTHOR’S NOTE: When considering an appointment as Amicus, this decision is essential reading. The key takeaway is that the role has to be fully flushed out by the trial judge making the appointment. There need to be strict rules about how “adversarial” the amicus is to be and whether they have any confidentiality with the accused. The amicus must be aware of the rules as they are not particularly fixed in law – the appointment is flexible to the needs of the court. The rules have to be clearly communicated to all involved in the litigation and the terms of the appointment must guide the amicus in their function.
I. Overview
[1] At issue in this appeal is the proper scope of the role that amicus curiae — a “friend of the court” — can play at criminal trial. When an unrepresented accused seems unable to advance a competent defence, does the guarantee of trial fairness permit or require the trial judge to appoint amicus with an adversarial mandate to advance the interests of the defence?
[5] That said, the law imposes a high standard for proving a miscarriage of justice. The inquiry must consider the circumstances of the trial as a whole. Here, the trial judge faced the difficult task of managing a jury trial that Mr. Kahsai seemed determined to derail. Once it became obvious that Mr. Kahsai would not cooperate with the court or advance any viable defence, the trial judge took several measures to preserve trial fairness and restore balance to the proceeding. This included the appointment of an amicus. Although the trial judge seems to have held the view that amicus could not play a more adversarial role, it is not clear that he would have granted a broader mandate in the circumstances, particularly given Mr. Kahsai’s objections to the appointment of the amicus, and he was under no obligation to do so. Any irregularity does not result in a miscarriage of justice. I would dismiss the appeal.
[6] Selmawit Alem and Tam “Julie” Tran were found dead in their Calgary home on October 19, 2015. At the time of their death, Ms. Alem was 54 years old and Ms. Tran was 25 years old. Ms. Alem was the biological mother of the accused, Emanuel Kahsai. She lived with Ms. Tran, working as her primary caretaker. Ms. Tran required care because of serious developmental challenges. She had no relation to Mr. Kahsai.
[7] Both victims sustained multiple stab wounds to their face, neck and abdomen, along with blunt-force injuries to the face.
[8] Mr. Kahsai emerged as the primary suspect. Evidence led by the Crown suggested that he had a history of threatening to kill his mother. Ms. Alem sought and obtained an emergency protection order against her son in June 2015 and then again in September 2015, which was still in place at the time of her death.
[9] The Crown’s theory of the case was that Mr. Kahsai targeted his mother out of personal animus. On this theory, he only killed Ms. Tran to eliminate her as an eyewitness. The Crown led circumstantial evidence that connected the appellant to the killings. This included eyewitness and surveillance evidence that after the murders, a man who looks like Mr. Kahsai drove Ms. Alem’s vehicle from her Calgary home to an Edmonton parking lot near the building where Mr. Kahsai was apprehended, stopping en route to dispose of unknown items in a dumpster. It also included forensic evidence showing blood from both victims on several items seized from the apartment building where Mr. Kahsai was found at the time of his arrest, including his jeans and running shoes.
[11] Leading to his trial, Mr. Kahsai displayed behavior that put his fitness to stand trial into question. Three psychiatric assessments found that he was fit to stand trial but feigning symptoms of mental illness for ulterior motives or strategic purposes. Relying on these assessments, the trial judge found there were no reasonable grounds to proceed with a hearing on the question of fitness. That determination is not challenged on this appeal.
[12] Mr. Kahsai discharged his lawyer before his preliminary inquiry and then refused to retain counsel. He insisted on representing himself for the entire proceedings.
A. Court of Queen’s Bench of Alberta (Poelman J.)
[13] Mr. Kahsai was tried by a jury in the Court of Queen’s Bench of Alberta. Before trial, the case management judge appointed counsel under s. 486.3 of the Criminal Code to cross-examine certain Crown witnesses on behalf of the defence. The trial judge appointed an amicus to help the accused with jury selection.
[14] Mr. Kahsai was repeatedly excluded from the courtroom because of his chronically disruptive behavior. He often interrupted the trial judge and trial process with belligerent and disorderly conduct, despite repeated cautions from the judge. When given the opportunity to address the court, the accused expressed various conspiracy theories about the FBI, the U.S. Army, and mind control, rather than asking relevant questions of witnesses or advancing relevant argument. Once Mr. Kahsai was excluded from the courtroom, he would generally participate in the proceedings from a separate room via video conference. Because his outbursts persisted from seclusion, the trial judge ordered that Mr. Kahsai’s microphone be muted over 60 times.
[15] Partway through the trial, the trial judge determined that the appointment of a second amicus was “necessary for this case to be justly adjudicated”:
In this case, I have observed and listened to Mr. Kahsai during the voir dire proceedings and this first week [of trial] before the jury. He has not participated in a reasonable fashion. Rather, he has taken every opportunity to disrupt the proceedings. I have had to place him in another courtroom to observe and listen to the proceedings. I have had to mute his mic most of the time. His questioning of witnesses has been ineffective and, insofar as relevant inquiries go, nonexistent. (A.R., vol. V, at p. 577)
[16] The judge appointed the same lawyer who acted as s. 486.3 counsel as amicus to identify and test relevant evidence. He explained that appointing this counsel was in “the interest of justice and a fair trial” because he was available for much of the remaining trial, already familiar with the case, and another lawyer likely would not be available for the role on such short notice (A.R., vol. V, at p. 577).
[17] The trial judge made explicit in his appointment order that amicus would not be representing Mr. Kahsai. Rather, his role was “to assist the Court in ensuring that the proceedings are conducted fairly and appropriately” (A.R., vol. V, at p. 577). Seeking not to infringe Mr. Kahsai’s right to represent himself, the trial judge instructed amicus not to advocate on behalf of the defence but to cross-examine Crown witnesses as he saw fit. The accused retained his right to represent himself and cross-examine Crown witnesses himself. In his charge to the jury, the trial judge repeated that trial amicus did not represent the accused and that anything he said was strictly in his capacity as a friend of the court.
[18] Mr. Kahsai resisted the appointment of amicus and mostly refused to cooperate with him throughout the proceedings. On appeal, the trial amicus gave evidence that the accused was generally hostile to him, was not interested in discussing strategy, and disclosed no potential defence. While at times, Mr. Kahsai cooperated with trial amicus — for example, by providing questions for him to ask Crown witnesses — more often, he was confrontational and “belligerent” towards amicus and the court (A.R., vol. II, at p. 27).
[20] Mr. Kahsai advanced no theory that would give rise to a defence. But he maintained that the Crown had not proven his guilt beyond a reasonable doubt because the evidence was not reliable. In particular, he urged the jury to find him not guilty because the running shoes found on site at the time of his arrest were not his shoe size and did not belong to him.
[21] Mr. Kahsai’s attempt to deliver his own closing argument was cut short by the trial judge once it became obvious that he was not going to speak coherently on relevant matters. Instead, he used his closing argument as an opportunity to repeat various conspiracy theories, like his theory that “the FBI understands and believes [his] testimony, understands the situation at hand, the breaches of national security” (A.R., vol. VII, at p. 1236). After a few minutes of this closing address, the trial judge ordered that Mr. Kahsai be removed from the courtroom. The trial judge solicited no supplementary closing argument from trial amicus before proceeding with his final jury charge. Trial amicus did not ask the court for permission to deliver any closing argument, based on his understanding of the scope of his role. Both the judge and the amicus seem to have held the view that CLAO prevents amicus from advocating or making closing argument on behalf of the defence.
III. Analysis
[29] The issue to be decided is whether a miscarriage of justice arose. Mr. Kahsai does not claim to have suffered actual unfairness, but contends that the delayed and limited appointment of amicus led to an appearance of unfairness that rises to the level of a miscarriage of justice under s. 686(1)(a)(iii) of the Criminal Code.
[30]…. The case law that has emerged shows that trial judges have since struggled to define the permissible scope of roles for amicus. This decision seeks to clarify the functions that amicus can perform to assist the court and the factors that trial judges should consider when tailoring the scope of an amicus appointment.
[33] In the following reasons, I affirm and build on the principles established by this Court in CLAO. In the vast majority of cases, trial fairness can be assured by the trial judge, the Crown, and the defence performing their unique roles. However, in exceptional circumstances, the help of amicus may be needed to avoid actual unfairness or the appearance of unfairness. While amicus can never fully assume the role of defence counsel, they can discharge many adversarial functions typically performed by defence counsel where necessary to a fair trial. Although there are limits to the roles amicus can play — informed by the nature of their role as a friend of the court and the constitutional rights of the accused — the scope is broad enough to encompass adversarial functions where those are “necessary to permit a particular proceeding to be successfully and justly adjudicated” (CLAO, at para. 44).
[34] As to whether the delayed and limited amicus appointment in Mr. Kahsai’s trial created an appearance of unfairness that rises to the level of a miscarriage of justice, I conclude that it did not. The trial judge was under no obligation to appoint amicus at a particular point in the proceeding or with particular adversarial functions. And even if the amicus appointment were based on a misapprehension of the role of amicus, it did not create an irregularity so severe that it would shake the public confidence in the administration of justice.
A. Inherent Jurisdiction to Appoint Amicus to Ensure Trial Fairness
[36] The power to appoint amicus curiae flows from the inherent jurisdiction of superior courts to manage their own procedure to ensure a fair trial (CLAO, at para. 46; I. H. Jacob, “The Inherent Jurisdiction of the Court” (1970), 23 Curr. Legal Probs. 23, at pp. 27-28). This jurisdiction empowers a superior court judge to appoint amicus when the judge believes doing so is required for the just adjudication of a case. The power of a statutory court to appoint amicus is necessarily implied from the court’s authority to control its own process and function as a court of law (CLAO, at paras. 12 and 112). The discretionary power to appoint amicus should be used “sparingly and with caution, in response to specific and exceptional circumstances” that arise (para. 47).
[37]….The defining feature of amicus is that they owe their duty of loyalty exclusively to the court, regardless of the circumstances or the specific terms of their appointment (paras. 53, 87 and 118). While the purpose of an amicus appointment must be to assist the court, it may have the incidental effect of advancing the interests of the accused (see M. Vauclair and T. Desjardins, in collaboration with P. Lachance, Traité général de preuve et de procédure pénales 2022 (29th ed. 2022) , at para. 26.6, citing CLAO, at para. 119).
[38] The role of amicus is highly adaptable and can encompass duties that exist on a broad spectrum of functions (see R. v. Walker, 2019 ONCA 765, 381 C.C.C. (3d) 259, at para. 65; CLAO, at para. 117). The precise role for amicus will depend on the particular needs identified by the trial judge. But the role of amicusis not without limits. In CLAO, this Court established that amicus would exceed the proper scope of their role once “clothed with all the duties and responsibilities of defence counsel” (para. 114, per Fish J., dissenting, but not on this point). CLAO identified several dangers that arise from blending the roles of defence counsel and amicus. First, the Court recognized that such an appointment may interfere with the constitutional right of the accused to represent themselves (para. 51). Second, the Court articulated concerns that arise from the role of amicus as friend of the court. These include the potential conflict of interest between the duty that an amicus owes to the court and the duty they would owe to the accused; and the risk that an amicus might undermine the impartiality of the court by giving strategic litigation advice to the accused (paras. 53-54)….
[39] These dangers will preclude a court from appointing amicus to assume all of the powers and duties of defence counsel. That said, there is a wide range of adversarial functions that amicus can execute without engaging these concerns, as the subsequent cases show. In some cases trial fairness may be best served by appointing amicus to oppose the position of the Crown where the accused is unrepresented. The dangers identified in CLAO help tailor the role for amicus, as I explain below. But they do not impose a bar on appointing amicus with defence-like functions, when the court determines that an adversarial perspective is needed to ensure a fair trial.
B. Limitations on the Scope of Roles for Amicus
(1) Role as Friend of the Court
[41] First, assuming the role of amicus imposes a duty of loyalty to the court that amicus must always uphold, regardless of the specific functions they are assigned to discharge. To prevent a conflict of interest, counsel acting as amicus cannot uphold a simultaneous duty of loyalty to the accused (CLAO, at para. 53). This means that once counsel is appointed as amicus, they cannot maintain any solicitor-client relationship with the accused. An amicus does not take instructions from the accused and cannot be dismissed by the accused. Thus, while amicus can advocate in ways that advance the interests of the defence, they do not “represent” the accused. This may be especially important for the trial judge to make clear when appointing amicus in a proceeding with an accused who is unrepresented despite their efforts to seek or retain counsel.
[42] Second, and relatedly, as a friend of the court, the mandate of amicus is to act as a lawyer of the court and for the court. Thus, amicus cannot be given functions that would essentially undermine the court’s duty of impartiality — for example, by advising the accused on strategic litigation decisions (CLAO, at para. 54). If in performing their assigned mandate the amicus encounters a conflict with the duty of loyalty they owe to the court, they must always privilege their duty to the court. The amicus should alert the court immediately if they are put in a position that would compromise their ability to discharge their duty of loyalty to the court.
(2) Rights of the Accused
[43] The roles that amicus can perform may also be restricted by the constitutional right of the accused to conduct their own defence (CLAO, at para. 51, citing R. v. Swain, [1991] 1 S.C.R. 933, at p. 972). This right encompasses control over key litigation decisions, including whether to proceed with representation; what mode of trial to elect; whether to plead guilty or not guilty; whether to lead any defence; whether to testify; and what witnesses to call (Swain, at p. 972; R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 9, citing Vescio v. The King, [1949] S.C.R. 139, at p. 144; R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 2; R. v. White, 2022 SCC 7). Empowering the accused with control over key strategic decisions advances trial fairness by ensuring they may bring forward the defence they see fit. The right is a principle of fundamental justice, flowing as a “reflection of our society’s traditional respect for individual autonomy within an adversarial system” of justice (Swain, at p. 972). An accused can thus make strategic decisions that may be seen as unwise, or even detrimental to their position — so long as they are fit to stand trial and the court is satisfied that the choice stems from an informed and reality-based decision (see Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41; R. v. Bharwani, 2023 ONCA 203, 424 C.C.C. (3d) 197, at para. 167; R. v. Ledesma, 2020 ABCA 410, 395 C.C.C. (3d) 259; Walker, at para. 35).
[44] However, the right of the accused to control their own defence is not absolute (Swain, at p. 976). It is still subject to the ordinary rules of law and does not confer the accused with special privileges. For example, an accused can only advance defences available at law and elicit evidence that complies with the rules of evidence. A defendant’s conduct is also subject to the direction of the court in managing its process; the right to represent oneself does not give “licence to paralyze the trial process by subjecting an endless stream of witnesses to interminable examination on irrelevant matters” (see R. v. Fabrikant (1995), 97 C.C.C. (3d) 544 (Que. C.A.), at p. 574). Similarly, a defendant’s choice of representation is always subject to counsel’s duty of professional integrity. Where counsel feels unable to continue without breaching their oath, they must seek to withdraw, despite any resistance from the accused (see Cunningham, at paras. 48-49; see also, e.g., Law Society of Alberta, Code of Conduct, r. 3.7-5; Law Society of Ontario, Rules of Professional Conduct, r. 3.7-7). Thus, the conduct of a defence operates within the legal and ethical framework of the justice system, alongside other rules and principles of fundamental justice.
[45] The right of the accused to control their own defence restricts the adversarial functions that amicus can assume. As noted by the intervener the Canadian Civil Liberties Association, amicus cannot make submissions or seek to elicit evidence that would contradict any defences or theories raised by the accused (see I.F., at p. 8)….
….Thus, while a trial judge can appoint amicus with adversarial functions over the objections of an accused, the judge must consider any objections in tailoring the scope of the appointment, with particular sensitivity to the limitations imposed by the right to control one’s defence. This may be especially crucial where the accused is unrepresented not for failure to secure counsel, but because they insist on representing themselves.
[46] Some adversarial functions should generally be available for amicus because they do not conflict with the right to control one’s own defence. For example, amicus can seek to advance the interests of the accused through examinations or submissions that do not conflict with the key strategic choices of the accused. Within those limits, amicus should always be entitled to test the strength of the Crown’s case to put the Crown to its burden of proving guilt beyond a reasonable doubt.
[47] Tailoring the role for amicus will be case-specific, shaped both by how the accused exercises their constitutional rights and what is needed to ensure a fair trial….
I agree with Khullar J.A. that “respect for the accused’s autonomy is not always necessarily incompatible with an amicus performing roles similar to those of defence counsel” (appeal reasons, at para. 175). In general, the trial judge should seek to give effect to the asserted key litigation decisions of the accused while also keeping in mind what is required to avoid a miscarriage of justice.
[49] In sum, the proper scope of the roles for amicus is limited by necessary constraints inherent in the nature of the role. First, the role of amicus as a friend of the court means that amicus can never discharge functions that would violate their duty of loyalty to the court or undermine the impartiality of the court, such as by advising on key strategic defence choices. Second, the mandate assigned to amicus should respect the key strategic decisions asserted by the accused while also respecting what is required for trial fairness. Finally, the appointment of amicus cannot be exploited to circumvent the legal aid scheme or judicial decisions to refuse to grant state-funded counsel. While these limits do not preclude amicus from performing any adversarial functions, they do restrict the kinds of assistance that amicus can provide.
C. Discretion to Appoint Amicus with Adversarial Functions
(1) When the Assistance of Amicus May Be Required
[52] The adversarial system depends on certain conditions being present to function as an effective mode of procedure. For example, the adversarial system “assumes that the litigants, assisted by their counsel, will fully and diligently present all the material facts which have evidentiary value in support of their respective positions” to enable the court to resolve the dispute (Phillips v. Ford Motor Co. of Canada Ltd., [1971] 2 O.R. 637 (C.A.), at p. 657). The system also depends on the ability of parties to advance their own position and challenge the case presented by an opposing party through the exercise of adversarial functions. This would include, for example, the litigation strategy; the selection of a jury; submissions raising or responding to evidentiary or other legal concerns; examining and cross-examining witnesses; and opening and closing argument. In a criminal proceeding, trial fairness is particularly dependent on the ability to challenge the Crown’s case to ensure the interests of the accused are protected. If there is an imbalance in the capacity of the parties to bring forward a viable case by performing adversarial functions, “the adversarial process upon which the strength of our justice system is predicated risks losing much of its force” (Walker, at para. 63; see also R. v. C.M.L., 2016 ONSC 5332, at para. 80 (CanLII), per Molloy J.). In this sense, adversarial functions advance both the interests of individual litigants, including the accused, and the broader public interest in an effective adversarial process.
[53]….Proceeding to criminal trial without representation will often put the accused at a significant disadvantage, sometimes risking a trial in which no meaningful defence is advanced. This is a choice that the accused has a right to make, provided they are fit to stand trial and informed about the consequences of their decision. But that choice may jeopardize the fairness of a trial. To protect the integrity of the adversarial system from these inherent vulnerabilities, the trial judge and the Crown have unique roles to play to ensure a fair trial for an unrepresented accused.
[54] The trial judge has a duty to help an unrepresented accused to ensure the proceeding respects their fundamental rights (R. v. J.D., 2022 SCC 15, at para. 34). While this duty can typically be fulfilled by explaining the trial process to the accused, some circumstances will require the judge to more actively intervene. For example, the duty may require the trial judge to suggest that the accused seek counsel; to identify the material issues; to frame questions to elicit relevant evidence for the defence; or to raise potential Charter breaches on the judge’s own motion (R. v. Jayne, 2008 ONCA 258, 90 O.R. (3d) 37; R. v. Galna, 2007 ONCA 182, at para. 6 (CanLII); R. v. Richards, 2017 ONCA 424, 349 C.C.C. (3d) 284, at para. 113; R. v. Sabir, 2018 ONCA 912, 143 O.R. (3d) 465, at paras. 32-36). At the same time, judges must always remain neutral, which limits the scope of their duty to help an unrepresented accused. For example, the judge cannot provide the accused with strategic advice or take over cross-examination for the defence (R. v. Jaser, 2014 ONSC 2277, at para. 32 (CanLII); Richards, at para. 111). To balance these competing obligations, the judge must ensure the accused will benefit from a procedurally fair trial, while being mindful not to offer help that would be seen to undermine the impartiality of the court.
[55] ….Because of the public and quasi-judicial dimension to the Crown’s role, their function is not adversarial or partisan in the traditional sense. Rather, it is driven by their purpose to advance the public interest (R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983, at para. 27). As famously expressed by Rand J. in Boucher v. The Queen, [1955] S.C.R. 16, the goal of the Crown is “not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime” (p. 23). The Crown must always act fairly, dispassionately, and with integrity, both in the courtroom and in all their dealings with the accused (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 155, per Binnie J., dissenting, but not on this point).
[56] The mandate of the Crown to advance the public interest means counsel will assume additional obligations when prosecuting an unrepresented accused. For example, the Crown must advise the unrepresented accused of their right to disclosure of all relevant materials in the possession or control of the Crown, whether that evidence is inculpatory or exculpatory (R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 343). Crown counsel also has a duty to frankly alert the court if they suspect that “all available legal proof of the facts” is not being presented to the court by the unrepresented accused (Boucher, at p. 24). Further, it has been suggested that the Crown must be especially careful to present only legally admissible evidence, given that an unrepresented accused will generally be less familiar with the rules of evidence and less likely to challenge Crown evidence (see I. J. Schurman, “The Unrepresented Accused: Duties and Obligations of Trial Judges and Crown Counsel, and the Preparation of Petitions for State-Funded Counsel”, in G. A. Smith and H. Dumont, eds., Justice to Order: Adjustment to Changing Demands and Co-Ordination Issues in the Justice System in Canada (1999), 297, at pp. 310-11). Finally, Crown counsel must cooperate with the trial judge to enable the court to assist an unrepresented accused and facilitate a proceeding that upholds their fundamental rights.
[57] The responsibilities of the trial judge and the Crown can go a long way to ensure trial fairness and, in the vast majority of cases, will suffice to prevent a miscarriage of justice. Yet there are limits tied to the roles of judge and Crown counsel in an adversarial proceeding, and their assistance will not always be enough to ensure a fair trial. Appointing amicus with adversarial functions may be required to restore some balance in “unusual cases”, including when an unrepresented accused displays symptoms of mental health challenges, but is nevertheless fit to stand trial, or where the unrepresented accused refuses to participate in the trial (see C.M.L., at para. 68). It may also be required where the nature of the charges or the mode of trial make an adversarial perspective from amicus necessary for the case to be justly adjudicated (see Walker, at para. 64; R. v. Brooks, 2021 ONSC 7418, at para. 44 (QL, WL); C.M.L., at paras. 76 and 86).
[58] Generally, the court must respect the strategic choices of an accused person who is fit to stand trial, even where those choices seem irrational or unwise (see Bharwani, at para. 157). Still, courts have recognized that in “complex cases involving self-represented accused with mental, behavioural, and/or cognitive challenges”, the risk that the adversarial process will be compromised is particularly acute (Walker, at para. 63). And as the intervener the Empowerment Council notes, the low threshold for fitness means that defendants may be fit to stand trial despite experiencing serious mental, behavioural, or cognitive challenges (see I.F., at para. 18). In that event, it may be challenging to ensure a fair trial, and assistance from the trial judge and the Crown may not suffice. Amicus can be a flexible tool to mitigate these risks and help trial judges maintain the integrity of their trial process when these types of unusual circumstances arise (R. v. Imona-Russel, 2019 ONCA 252, 145 O.R. (3d) 197, at para. 72; Jaser, at para. 35; Walker, at para. 71).
(2) Considerations in Determining the Scope of the Role of Amicus
[59]….Exceptionally, appointing amicus with an adversarial mandate may be necessary for the court to fulfill its responsibility to maintain a fair and effective trial — particularly when imbalance in the adversarial process threatens to create a miscarriage of justice.
[60] Many recent cases illustrate where courts found it necessary to appoint an amicus with adversarial functions. For example, courts appointed an amicus with a defence-like role where the accused was unwilling to retain a lawyer and did not actively participate in the proceeding (R. v. Borutski, 2017 ONSC 7748; R. v. Chemama, 2016 ONCA 579, 351 O.A.C. 381; C.M.L.); where the accused represented themselves, but could not advance a competent defence (Walker; Jaser, at para. 35; R. v. Ryan, 2012 NLCA 9, 318 Nfld. & P.E.I.R. 15); where the accused was disruptive, abusive of court process, or determined to derail the proceedings (Brooks; R. v. Mastronardi, 2015 BCCA 338, 375 B.C.A.C. 134, at paras. 9-10 and 50; C.M.L.); and where complex issues or serious criminal charges made an adversarial perspective necessary for trial balance and fairness (Mastronardi; Imona-Russel, at paras. 30-31; Brooks, at paras. 43-44; Borutski; Jaser). In many of these cases, the court appointed an amicus with an adversarial role only after explicitly determining that the dangers identified in CLAO would not materialize (Borutski, at para. 29 (CanLII); C.M.L., at para. 71; Mastronardi, at paras. 44-47; Imona-Russel, at para. 93).
[61] As these cases reveal, the trial judge should consider the circumstances of the trial as a whole when determining whether to appoint amicus with an adversarial role. This includes the nature and complexity of the charges (see Ryan, at para. 156; Walker, at para. 64; Brooks, at para. 44); whether it is a jury trial or judge alone (see C.M.L., at paras. 76 and 86; Brooks, at para. 44); the attributes of the accused, including where they are unrepresented and any concerns about mental health challenges or their ability to cooperate with the court (see Walker, at para. 64; Mastronardi, at paras. 50-52; Brooks, at para. 44; C.M.L.); whether assistance is needed to test the Crown’s case or advance a meaningful defence (see Borutski, at paras. 23, 28 and 31; Ryan, at para. 156); and what assistance the Crown and trial judge can provide within their roles (see C.M.L., at para. 80; Imona-Russel, at para. 69; Ryan, at para. 156).
[62] Amicus can legitimately assume a wide range of adversarial functions throughout the proceedings, within the scope of the limits identified above. For example, I accept the submission of the intervener the Criminal Lawyers’ Association that amicus can help the accused by explaining the strategic choices available to them, along with the potential implications of those decisions (see I.F., at p. 2). And there is no theoretical barrier to prevent amicus from testing the strength of the Crown’s case through cross-examination, submissions or closing argument (see Mastronardi; Borutski; C.M.L.; Walker). As noted above, amicus may present an alternative theory or defence arising on the evidence to counter the position of the Crown, provided it does not conflict with any asserted theory or defence of the accused. Other adversarial functions may also be available.
[63] That is not to say a broad adversarial mandate for amicus is always necessary, nor that it should be close to routine. The dangers established in CLAO led this Court to affirm that the power to appoint amicus must be reserved for exceptional circumstances. But these dangers do not stand in the way of maintaining public confidence in trial fairness — and as several authorities illustrate, they can be accommodated with an appointment order carefully tailored to the circumstances of a particular case.
D. Summary and Best Practices
[64] In sum, in the vast majority of cases, the responsibilities of the trial judge and the Crown will suffice to ensure trial fairness. Once it is determined that amicus is required, the trial judge retains wide discretion to appoint amicus with functions that are responsive to the needs of a case. This may include adversarial functions where necessary for trial fairness — for example, to restore balance to a proceeding when an accused chooses to self-represent and puts forward no meaningful defence. In tailoring the scope of the role for the amicus, the judge will consider the nature of the role of amicus as friend of the court and the circumstances of a case, including how the accused exercises their constitutional rights and what is needed to ensure a fair trial. While there are necessary limits to the adversarial functions that amicus can perform, the scope is broad enough to accommodate what is necessary for trial fairness in a particular case.
[65] In considering whether to appoint amicus, the judge should canvass the parties for their perspectives about the necessity and scope of an amicus appointment. The judge should consider whether an appointment that is limited in duration or scope would suffice. For example, assistance from amicus may only be necessary for cross-examination of certain Crown witnesses or for a particular motion in the proceeding. It would also be helpful to reduce the terms of appointment to writing in a formal order or endorsement, explicitly identifying the nature and scope of the role for the amicus and the specific functions that the court requires.
[66] Finally, the trial judge should consider whether the mandate assigned to an amicus will make a confidentiality order necessary for the amicus to effectively discharge their role. As the intervener the Criminal Trial Lawyers’ Association submitted, full and frank conversation between the accused and an amicus may depend on a confidentiality order if the amicus is charged with advocating for the interests of the defence (see I.F., at p. 7). While solicitor-client privilege would not be available, a confidentiality order would create legal protections for communications between the amicus and the accused in discussing their case (see, e.g., Imona-Russel, at paras. 64 and 68, explaining how an undertaking by Crown counsel to treat all correspondence between the accused and amicus as privileged achieved the confidentiality necessary in that case).
IV. Application
[67] To succeed on this appeal, Mr. Kahsai must show that the amicus appointment in his trial created an irregularity so severe that it rendered the trial unfair in fact or in appearance (R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 69 and 73). He will establish a miscarriage of justice if the gravity of the irregularity would create such a serious appearance of unfairness it would shake the public confidence in the administration of justice (R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828, at para. 51, citing R. v. Wolkins, 2005 NSCA 2, 229 N.S.R. (2d) 222, at para. 89). This analysis is conducted from the perspective of a reasonable and objective person, having regard for the circumstances of the trial (Khan, at para. 73). It must also acknowledge that while the accused is entitled to a fair trial, they are not entitled to a perfect trial, and “it is inevitable that minor irregularities will occur from time to time” (Khan, at para. 72).
[68] The “miscarriage of justice” standard — already a high bar — is even higher when claimed based on perceived unfairness instead of actual prejudice. When the perceived unfairness of a trial is at issue, “the appearance of unfairness must be pronounced, such that it would be a serious interference with the administration of justice and offend the community’s sense of fair play and decency” (Davey, at para. 74). Whether a miscarriage of justice arose is a question of law reviewable for correctness (R. v. Schmaltz, 2015 ABCA 4, 599 A.R. 76, at para. 13, citing Schmidt v. The King, [1945] S.C.R. 438, at p. 439).
[70] For reasons I will explain, Mr. Kahsai has not discharged his burden in proving a miscarriage of justice.
A. A Miscarriage of Justice Did Not Arise
[71] Mr. Kahsai argues that an appearance of unfairness arose from two aspects of the amicus appointment in his trial. First, he submits that the timing of the appointment created an appearance of unfairness. He contends that the trial judge failed to ensure a fair and balanced proceeding by appointing an amicus partway through his trial, which prevented trial amicus from adequately preparing for his role. Second, Mr. Kahsai claims that an appearance of unfairness arose from the scope of the amicus appointment, which was based on the trial judge’s misunderstanding of the functions that amicus can properly discharge. In particular, he claims it was an error for the trial judge to conclude the trial with no closing argument for the defence, based on the understanding that CLAO prevented trial amicus from advocating on behalf of the accused.
[76] It is not clear that appointing amicus earlier or with a broader mandate would have provided much value for Mr. Kahsai, who forcefully resisted the appointment of amicus and sustained his objection to their participation throughout the trial. He refused to cooperate with trial amicus, was not interested in discussing strategy, and disclosed no potential defence. In this circumstance, it is hard to see how a different amicus appointment would have impacted the fairness or perceived fairness of his trial. While the appellant bears no burden to prove actual prejudice on this appeal, he needs to show that a well-informed and objective person would find an appearance of unfairness so serious that it would shake their confidence in the administration of justice — a high bar.
[77] In my view, a reasonable member of the public, considering the circumstances of the trial as a whole, would not find that a miscarriage of justice occurred. Instead, they would find the trial fairness concerns were sufficiently addressed by the trial judge and the assistance of amicus, such that a new trial is not required.
[78] I would dismiss the appeal.
R v Wournell, 2023 NSCA 53
[July 27, 2023] Sentencing: CSOs and Gun Offences, IRCA reports [Reasons by Derrick J.A. with Farrar and Fichaud JJ.A. concurring]
AUTHOR’S NOTE: Much as in Gladue caselaw, the fairly new Impact of Race and Culture Assessments are having a mixed impact on the sentences of individuals. Playing lip service to these assessments without showing how they impacted a sentence is a reviewable error on sentencing. This case shows that a proper consideration of IRCA factors can results in a proportional sentence being much lower than otherwise. Here, possession of a sawed off .22 calibre rifle resulted in a 2 years less a day CSO.
Introduction
[1] On April 25, 2022 Cale Wournell received a jail sentence and probation for firearms charges to which he had pleaded guilty. He appealed his sentence, arguing the judge did not properly consider whether a conditional sentence was appropriate, failed to follow the guidance of this Court in R. v. Anderson1 and made only passing note of an Impact of Race and Culture Assessment (IRCA). He asks this Court to allow his appeal and impose a Conditional Sentence Order of 12 to 18 months, less credit for the time he was incarcerated.
[2] I agree the sentencing judge erred in law and principle. As a consequence, Mr. Wournell’s sentence must be re-visited. For the reasons that follow I would allow the appeal, set aside the sentence he received and, having applied credits for time served under strict release conditions and in jail, impose a Conditional Sentence Order of 4 months followed by 12 months’ probation.
[7] The appellant was charged with uttering threats and a number of firearms offences. The Crown proceeded by indictment. The appellant pleaded not guilty and obtained a trial date in Provincial Court. On the day of trial, he entered guilty pleas to three of the charges:
- That he had unlawful possession of an Airsoft gun for a purpose dangerous to the public peace or for the purpose of committing an offence, contrary to s. 88(1) of the Criminal Code.2
- That he possessed a prohibited firearm, the .22 calibre sawed off rifle, together with readily accessible ammunition capable of being discharged from the rifle, without being a holder of an authorization or license or registration certificate for the firearm, contrary to s. 95(1) of the Criminal Code.
- That he was an occupant of a motor vehicle in which he knew there was a firearm, the .22 calibre rifle, contrary to s. 94(1) of the Criminal Code.
[8] In separate proceedings sometime after his sentencing for the offences, the appellant pleaded guilty to breaching his release conditions on four occasions between February and July 2021. On December 16, 2022 he received an eighteen month conditional discharge.
The Position of Crown and Defence at Sentencing
[9] The sentencing hearing on April 25, 2022 was contested. The Crown sought 2 to 2.5 years in custody and ancillary orders for weapons prohibition, weapons forfeiture and DNA. These ancillary orders were imposed and are not being appealed.
[12] The sentencing judge, Judge Michael Sherar of the Provincial Court of Nova Scotia, had before him an IRCA dated December 9, 2021 and a presentence report dated October 12, 2021. He imposed sentence in an oral decision immediately following the submissions of the Crown and defence. He ordered the appellant to serve a jail sentence of two years less a day in a Provincial institution, to be followed by 12 months’ probation with conditions.
[13] The sentencing judge’s reasons acknowledged many of the appellant’s personal characteristics. He noted the appellant:
- Is African Nova Scotian (ANS).
- Identifies as “bi-racial and bi-sexual”.
- Was 26 years old.
- Has an acquired traumatic brain injury as a result of a motor vehicle accident when he was an adolescent.
- Had experienced “significant residential instability” growing up.
- Completed Grade eight.3
- Had no criminal record.
- Was unemployed but had the means to “finance a home and a vehicle”.4
- Was in a polyamorous relationship.
- Had a pregnant partner.
- Had had prior substance abuse issues and although sober for a year, was experiencing some slippage due to his current situation.
[14] Certain other experiences of the appellant described in the IRCA and the PSR were not mentioned in the judge’s sentencing reasons. I will return to these later.
[15] The judge’s description of the appellant having sustained his brain injury in adolescence was incorrect. As noted in the pre-sentence report, the car accident occurred when the appellant was 13 months old.
[17] The judge immediately focused on denunciation and general and specific deterrence, stating:
Just specifically, even knowing that information, we have to fashion a fit and proper sentence for the correction of Mr. Wournell to deter him from committing further criminal activity, but also to deter others in similar circumstances, and that requires a form of denunciation…
[18] The judge observed that the appellant had displayed the Airsoft pistol in an intimidating fashion but not the sawed-off .22 calibre rifle which had been lying out of sight in the trunk. Although he did not explicitly describe any factors as either aggravating or mitigating, the judge commented on the appellant pleading guilty and admitting responsibility for all three offences and, “most importantly” having no criminal record.
[19] The judge focused his approach to a fit sentence for the appellant on the nature of the offences, being neither committed “in a true criminal context” such as use in the drug trade nor falling into the category of “a regulatory licencing problem”.5 When discussing this latter category of offence, the judge noted evidence that the appellant had taken courses to permit him to lawfully possess licenced firearms but had been unable to pay the required fee due to a lack of funds. As the judge observed, this partial step toward licencing was immaterial: even full compliance with the relevant regulations would never have afforded the appellant the right to possess the sawed-off .22 calibre rifle, a prohibited weapon.
[21] The judge did not accept the Crown’s submission that incarceration of 2 to 2.5 years was the appropriate sentence. However, in crafting his reasons, the judge made no mention of this Court’s decision in Anderson. He referred only to Mr. Anderson’s sentencing in the Provincial Court:
In R. v. Anderson referred to by the – both parties, the – this court as represented by the Chief Judge imposed a period of two years less a day6 on someone of similar circumstances to Mr. Wournell similarly. Significantly we have possession of a restricted – sorry, prohibited firearm, given allowance for the participation of Mr. Wournell in accepting responsibility that he purports that he possessed the firearm for hunting purposes7, he acknowledges it was in his possession and regrets his participation and what happened, and he has, as I’ve indicated, a pretty troubled background and he’s a first offender before this court, I believe taking into consideration the principles of sentencing and note the particular circumstances of Mr. Wournell, he be incarcerated for – he still ought to be incarcerated for a global period of two years less a day to be served in the Provincial institution followed by one year of probation…
[22] The judge also did not refer to R. v. Proulx8 in sentencing the appellant, a youthful first time offender, to imprisonment in a correctional institution.
Issues in the Appeal
[23] In an Amended Notice of Appeal, the appellant raises the following issues:
-
- The Learned Trial Judge erred in principle by rejecting a conditional sentencing order without considering all of the criteria set out in R. v. Proulx.
- The Learned Trial Judge erred in law by failing to meaningfully consider the Appellant’s background and circumstances in relation to the systemic factors of racism and marginalization, contrary to the direction [of this Court] in R. v. Anderson.
Errors in Principle by the Sentencing Judge
[54] Earlier I described how the judge reasoned through the sentence he imposed on the appellant. His analysis lacked essential components: he rejected the option of a conditional sentence order without applying Proulx and he failed to apply, let alone even mention, this Court’s decision in Anderson. I am satisfied each of these errors had an impact on the sentence the judge imposed on the appellant.
The Failure to Apply Proulx
[55] Gun offences are undeniably serious and “Gun-related crime poses grave danger to Canadians”.22 This does not mean however that a conditional sentence is an unfit sanction for a gun offence. Adherence to the paramount sentencing principle of proportionality can, and is, satisfied by sentences that range from conditional sentence orders pursuant to s. 742.1 of the Criminal Code to incarceration of two years’ or more in a federal penitentiary.23 The mandatory minimum sentence for s. 95(1) offences was struck down as unconstitutional by the Supreme Court of Canada in Nur. In Bill C-5, proclaimed on November 17, 2022, Parliament expressly removed the mandatory minimum.24
[57] In the context of re-visiting the appellant’s sentence I will discuss the analysis required where a conditional sentence is within the sentencing range, as it was here. The constituent elements are found in s. 742.1 of the Criminal Code. Relevant to the appellant’s sentencing on April 25, 2022, the judge was required to consider whether:
- The appropriate sentence is one of imprisonment of no more than two years’ less a day.
- Service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.
- There is no minimum term of imprisonment.
[59] The sentencing judge should have addressed the provisions of s. 742.1 and the focus in Proulx on:
- Parliament’s objective in instituting conditional sentencing as a means for reducing “the problem of overincarceration in Canada”.27 (As the Supreme Court of Canada and Parliament have recognized since Proulx, overincarceration, particularly of Indigenous and Black offenders, has become an even more pressing societal issue.28)
- The doubt that has been cast on the effectiveness of incarceration in achieving the goals intended by traditional sentencing principles, including the goals of denunciation and deterrence.29
- Parliament’s intention, by way of the 1996 amendments to the Criminal Code that included conditional sentencing, “to give increased prominence to the principle of restraint in the use of prison as a sanction through the enactment of s. 718.2(d) and (e) which provide, respectively, that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances” and “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders…”30
- The ability of a conditional sentence to provide “a significant amount of denunciation” and “…significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences”.31
[60] As is evident from my earlier recital of the judge’s decision at paragraphs 12 to 22, he gave no attention to the s. 742.1 provisions or any of the principles that emerged from Proulx. He concluded the appellant should be incarcerated for two years’ less a day in a provincial institution without any application of Proulx. This was an error in principle that impacted the appellant’s sentence. I would allow the appeal on this ground alone.
The Failure to Apply Anderson, 2021 NSCA 62
[61] As I previously noted, the sentencing judge did not mention the Anderson decision of this Court. It was not enough for him to simply refer to information from the PSR and IRCA about the appellant’s circumstances. As Anderson states:
[123] In explaining their sentences, judges should make more than passing reference to the background of an African Nova Scotian offender. It may not be enough to simply describe the offender’s history in great detail. It should be possible on appeal for the court to determine, based on the record or the judge’s reasons, that proper attention was given to the circumstances of the offender. Where this cannot be discerned, appellate intervention may be warranted.
[62] What is missing from the sentencing judge’s reasons is “proper attention” to the appellant’s circumstances in the crafting of a proportionate sentence. Guidance from this Court for sentencing an African Nova Scotian32 offender is found at paragraphs 112 to 124 of Anderson. Its application where a conditional sentence option is in play is found in paragraphs 126 to 163. There was specific information made available to the judge about the appellant, a racialized offender, that was relevant to his obligation to determine an individualized sentence. There is nothing in the judge’s reasons to indicate he went beyond his awareness of the information to applying it in the course of discharging the delicate task of contextualized sentencing.
[63] There was no engagement by the judge with any of the principles discussed in Anderson. The judge did not employ the IRCA to assist in:
- Contextualizing the gravity of the offences and the degree of the appellant’s responsibility for them.
- Revealing the existence of mitigating factors or explaining their absence.
- Addressing aggravating factors and offering a deeper explanation for them.
- Informing the principles of sentencing and the weight to be accorded to denunciation and deterrence.
- Identifying rehabilitative and restorative options for the appellant and appropriate opportunities for reparations by the appellant to the victims and the community.
- Strengthening the appellant’s engagement with his community.
- Informing the application of the parity principle.33
[64] This was an error in principle that impacted the appellant’s sentence. It too justifies the appeal being granted.
[79] Fundamentally what needs to be extracted from the evidence before us for the purpose of re-sentencing the appellant is an understanding of the social determinants that disproportionately impact African Nova Scotian/African Canadian individuals and their communities, and his background and circumstances in relation to the systemic factors of racism and marginalization.41 The respondent’s cross-examination of the appellant did not neutralize his claims that he has experienced abuse, residential instability, racial identity conflict, and poverty.
[80] An explanation for the contradiction between the appellant’s recall of his absences from home as an adolescent and his mother’s may lie in their historically fraught relationship. There is no doubt the relationship has been strained. The appellant testified to this effect, and had made this same comment when interviewed for the PSR. In the original IRCA, the appellant described the relationship as “volatile”.
[82] The appellant’s Acquired Brain Injury (ABI) needs to be taken into account in assessing the evidence before us. The appellant testified his ABI causes processing delay affecting his ability to take in information and formulate a response.
[84] I find the appellant did spend time away from home during his teenage years and even when with his mother there were many relocations and disruptions in housing arrangements.
[85] In conclusion on the reliability of the appellant’s narrative of his background and the systemic factors that have impacted him, I accept his experiences are woven from the threads of “slavery and racism, the trauma of marginalization and exclusion, discrimination and injustice [that] are the fabric of the lives of many African Nova Scotian offenders”.42
Re-Sentencing the Appellant – The Merits
Individualized Sentencing – the Appellant’s Background and Systemic Factors
[90] The three reports—the PSR, the original IRCA and the updated IRCA—all reflect the deprivations experienced by the appellant, a racialized young man. His family was fractured, he grew up in poverty, struggled in school, ultimately acquiring only a limited education, was subject to sexual and physical abuse, lacked a positive Black male role model, endured housing instability and inadequate housing in socio-economically marginalized neighbourhoods, and struggled with his racial identity.
[91] This background, referenced in the PSR and the original IRCA, should have informed the sentencing judge’s determination of the range of sentence for the appellant’s offences and the considerations to be addressed in relation to a conditional sentence order.45
[92] The appellant’s conflicted racial identity is described in the original IRCA:
Throughout different periods of Mr. Wournell’s life, he describes his race and how that was perceived by others, as impacting his ability to fit-in to his surroundings. According to Mr. Wournell, during his time in Toronto and in certain communities he lived in in Halifax, he was considered not black enough…because some of his favourite activities were considered “white”, and by participating in these activities, Mr. Wournell was considered acting “white”.
This left Mr. Wournell feeling marginalized by the black community in Toronto…
While Mr. Wournell was not considered black enough in Toronto, when he and his family moved in with his maternal grandparents in…Dartmouth, he was considered too black…he described feeling alienated from his mother’s family and for a long time never considered race as the issue, just thought he was weird and different. It wasn’t until he was older and reflected, that he could make sense of things. At a young age as Mr. Wournell is trying to develop a racial identity, he was faced with the paradox of being too black in some environments and not black enough in others. This compounded with being raised by a white mother, would have created impediments to the development of Mr. Wournell’s racial identity.
…Furthermore, without paternal family influence, Mr. Wournell’s racial identity would have been severely impaired and underdeveloped as it was unbeknownst to him what it meant to grow up as a Black male. A lack of a strong racial identity leaves a person vulnerable to unhealthy influences…Mr Wournell did not receive sufficient support during this stage to assist him in developing a secure racial identity.
[93] In the updated IRCA the appellant spoke of having struggled throughout his life “to find a place of belonging” due to his bi-racial and bisexual identity.
[94] The original IRCA points to how systemic factors impacted the appellant’s chances of succeeding in school:
…He did not feel as though he belonged in school, that it was not the place for him. For a student whose initial school years were not positive, these feelings would have re-triggered those early experiences with Mr. Wournell. When we consider the aforementioned negative effects of instability on child development, it provides some understanding into Mr. Wournell’s disengagement from his education. Disengagement from his education is also reflected in the historically documented achievement gap that exists between African Nova Scotian learners and learners of European descent…
[95] The IRCA refers to the golf club assault disrupting the appellant’s engagement with his education and the progress he was making in developing “strong cultural relationships”. The appellant’s experience of being brutally assaulted as a teenager by his mother’s boyfriend has profoundly impacted him. The updated IRCA notes: “The social etiology of Black males’ lives places them at higher risk to adverse childhood experiences (ACEs). ACEs prevent Black male children from perceiving the world as a safe place”.
[96] Evidence about the appellant’s ABI and his “adverse childhood experiences” provide the exercise of re-sentencing him with valuable context for his offending.
[97] The updated IRCA provides insights into the appellant’s background and the systemic factors that are relevant to the individualized nature of sentencing. It says about the appellant:
…Mr. Wournell’s worldview is impacted by the cultural nuances of growing up as a Bi-racial Black male in Halifax; he also suffers from a traumatic brain injury impacting on his executive functioning (reasoning, impulsivity, poor social skills). Mr, Wournell was raised by his Caucasian mother and his contact with his birth father was limited. The impacts of poverty, community disruptions and seeking out a place of belonging as bi-sexual Black male, given the history of homophobia in the ANS community during his developmental years, may have impacted on his identity development. Overall, Mr. Wournell experienced various forms of emotional, intellectual and physical trauma that have impacted on his overall global functioning.
[98] The appellant’s impoverished coping mechanisms and impacted global functioning deficits manifested themselves in his offending. A proportionate sentence, one that reflects the gravity of the appellant’s offences and his moral culpability, must take into account the systemic and background factors that have contributed to him coming into conflict with the law.
A Proportionate Sentence
[99] Before a conditional sentence can be imposed, statutory prerequisites must be satisfied and, by a preliminary determination of the appropriate range of available sentences, both a penitentiary sentence and probation have to be eliminated as appropriate dispositions.46
[100] As noted earlier in these reasons, the range for the offences to which the appellant pleaded guilty includes a sentence of two years’ less a day, which permits the imposition of a conditional sentence subject to an assessment of the community endangerment issue. A conditional sentence can only be imposed where,
…service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.47
[101] As I noted in paragraph 57 above, the “endangerment of the community” factor must be assessed according to: (1) the risk of re-offence; and (2) the gravity of the damage should re-offending occur.48 These elements were extensively reviewed in Proulx which held that incarceration would be warranted where there is a “real risk” of re-offending and, particularly in the case of violent offenders, where there is even a minimal risk of “very harmful future crime”.49
[102] Proulx sets out a variety of factors relevant to the assessment of whether the offender poses a risk of re-offending. The decidedly individualized nature of sentencing is a critical aspect of the analysis. In the case of African Nova Scotian offenders, these factors should be evaluated in the context of the information contained in the IRCA.50 And as Proulx held, the risk can be mitigated by “the imposition of appropriate conditions” that support rehabilitation and impose a level of supervision to ensure compliance with those conditions.51
[103] This Court’s decision in Anderson addressed the issue of risk in the context of an African Nova Scotian offender:
[140] Taking account of context will be necessary in relation to the other non- exhaustive factors identified in Proulx as possibly relevant: the nature of the offence; the relevant circumstances of the offence, including prior and subsequent incidents; the degree of the offender’s participation; the relationship of the offender to the victim; and after-the-fact conduct. Proulx references in general terms what an IRCA can supply in rich and contextualized detail: the offender’s “profile”, including their “occupation, lifestyle, criminal record, family situation, mental state…”. As I noted earlier in these reasons, IRCAs supply a broad array of information to assist a sentencing judge’s understanding of the racialized offender.
[141] As for the degree of harm if there is re-offending, Proulx held that “a small risk of very harmful future crime” could be the basis for a judge deciding a conditional sentence is not appropriate. Again, risk may be attenuated by suitable conditions and culturally relevant supports in the community for the African Nova Scotian offender…52
[104] As noted earlier, the appellant’s compliance with release conditions slipped prior to his sentencing. In December 2022 he pleaded guilty to breaching his conditions on four occasions in 2021, including by violations of his house arrest. There is no clear explanation for the breaches although at the bail hearing the appellant’s grandmother implied that friction with a neighbour who has since moved may have contributed. However, it is appropriate to take a broader view of the appellant’s capacity to abide by the law: the appellant was 26 years old before he acquired a criminal record. The breaches occurred during a six-month period after the appellant had been on house arrest since late 2019. Otherwise, the appellant observed his conditions. He secured release on conditions pending his appeal and there have been no issues with his compliance .
[105] I am satisfied the appellant’s risk of re-offending can be managed in the community under a conditional sentence order. I am also satisfied that, as is statutorily required, a conditional sentence order in this case will serve the fundamental principle of proportionality set out in s. 718.1 of the Criminal Code. The gravity of the appellant’s offence and his moral culpability for it must be assessed in the context of historic factors and systemic racism. In re-sentencing the appellant we are to “take into account the impact that social and economic deprivation, historical disadvantage, diminished and non-existent opportunities, and restricted options may have had on the offender’s moral responsibility”.53
[106] The sentencing principles of denunciation and deterrence can also be served by the imposition of a conditional sentence on the appellant. As Anderson held: “…a properly crafted conditional sentence with appropriate conditions can achieve the objectives of denunciation and deterrence”.54 In sentencing African Nova Scotian offenders these objectives must be assessed contextually and “cannot be regarded as static principles to be applied rigidly in what is a highly individualized process”.55 And there is the potent consequence of breaching a conditional sentence—the “real threat of incarceration”.56
[107] The appellant’s experience of incarceration was wholly negative. The updated IRCA indicated that being locked up adversely affected his mental health. He struggled with chronic suicidal thoughts and found the carceral environment “overwhelming”. It contributed to his “sensory overload” and impacted his ability to sleep. It is reasonable to expect the appellant would not be inclined to risk a return to jail.
[108] The appellant has shown he can abide by strict conditions in the community. Conditions in a conditional sentence order can address issues underlying the appellant’s risk factors such as his vulnerability to unhealthy influences, identified in the original IRCA.
[109] As discussed in the IRCAs, the appellant has struggled with racial identity issues and locating a place in the ANS community. A conditional sentence order can support the development of this connection and its value to his rehabilitation….
[110] As noted in the updated IRCA, the appellant made pro-social connections in the 2SLGBTQA+ community where he is part of the Youth Project57 which he describes as supporting young people “in their coming out”. He says he feels “nurtured” by that community.
[112] A conditional sentence for the appellant ensures we do not lose sight of the sentencing principles of rehabilitation and restraint, particularly in this case of a first time offender. It acknowledges Proulx’s observation that Parliament mandated the “expanded use…of restorative principles in sentencing as a result of the general failure of incarceration to rehabilitate offenders and reintegrate them into society”.58 A conditional sentence for the appellant represents a restrained, restorative sanction, one that is responsive to the disproportionate incarceration of African Nova Scotians.
Credit for Restrictive Pre-Trial Release Conditions
[113] The appellant was originally released on December 30, 2019 under conditions that included house arrest with exceptions for: medical appointments or emergencies; court appearances or related appointments; in the presence of a surety once a week for four hours to attend to personal needs; and attendance at the sureties’ residence.
[114] The appellant was subject to these conditions, which were renewed on June 24, 2021, until he was sentenced on April 25, 2022.
[116] Prior to sentencing on April 25, 2022, the appellant was on conditional release under house arrest for a total of 847 days. He has continued to be on house arrest since his release on bail pending his appeal.
The Appellant’s Sentence
[122] I find the appellant’s sentence in the first instance should have been a conditional sentence order of two years’ less a day. It is no longer appropriate to impose that sentence given the time he spent incarcerated and on strict house arrest conditions.
[123] The appellant is entitled to a credit of 298 days for the time he spent in jail.64 I find the extensive period of time he has spent on strict release conditions, including house arrest, justifies a credit of 10 months. These credits taken into account, the appellant shall serve a conditional sentence of 4 months to be followed by 12 months’ probation.
MODERN CRIMINAL EVIDENCE
By Matthew Gourlay, Brock Jones, Renee Pomerance, Glen Crisp & Jill D. Makepeace
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