The Defence Toolkit – March 10, 2019

This week’s top three summaries: R v Tsega, 2019 ONCA 111, R v Penfold-Brown, 2019 ABPC 40, and R v Salehi, 2019 BCSC 197.

R. v. Tsega (ONCA)

[Feb 15/19] The Principled Exception to Hearsay - Speculative Explanations for Corroborative Evidence Can Result in Exclusion - 2019 ONCA 111 [Reasons by C.W. Houringan J.A. (G. Pardu, Harvison Young JJ.A. concurring)]

AUTHOR’S NOTE: R v Bradshaw has fundamentally altered the Principled Exception.  This case demonstrates that the Crown must now corroborate material aspects of the out-of-court statements with evidence that is "only" consistent with those aspects being true.  Even speculative explanations for the evidence can dislodge the corroborative effect of the evidence.

Pertinent Facts

"In February 2010, three young men from Toronto, Dylon Barnett, Kristopher McLellan, and Kyle Mullen, carried out a home invasion in Barrhaven, Ontario. The target of the invasion, Michael Swan, was shot and killed during the robbery. The three men, referred to as the "Toronto Three" by the trial judge, were arrested hours after the home invasion. Several months later the police arrested the appellant, alleging that he was responsible for directing the Toronto Three to Mr. Swan's home and supplying them with clothing to wear during the robbery." (Para 1)

"During the Christmas holidays of 2009 the appellant visited his father in Toronto. While there, he socialized with Mr. Barnett. According to a statement made to police by Mr. McLellan, he met with the appellant at Mr. Barnett's house and they first discussed robbing Mr. Swan." (Para 6)

"The Crown's theory at trial, supported by the hearsay statements made by Messrs. Mullen and McLellan, was that during the next two hours the appellant provided clothing and masks to wear during the robbery and drove with the Toronto Three to point out Mr. Swan's Barrhaven house, which was obstructed from the road by a line of trees." (Para 8)

"At approximately 12:30 a.m., the Toronto Three entered Mr. Swan's house. Messrs. McLellan and Barnett were armed with handguns and Mr. Mullen was carrying a baseball bat. They ordered Mr. Swan, along with his roommate, Tyler Tanguay, and his girlfriend, Kaitlyn Scott, to kneel on the floor. The robbers demanded to know the location of marihuana, cash, and a gun. Mr. McLellan then shot Mr. Swan in the back, fatally wounding him. After searching the house for ten or twenty minutes, the robbers left with marihuana, cash, and other items, including the victims' cell phones." (Para 9)

"Connor Buchanan [a friend of the appellant] decided to meet the appellant with his father, Alec Buchanan, to discuss the situation. The appellant admitted to them that the Toronto Three had visited him at his residence on the night of the robbery. He also told them that the Toronto Three threatened to shoot him if he did not give them "the guy's name" and tell them "where's this dealer at." Alec Buchanan recalled the appellant telling them the Toronto Three threatened him by holding a gun to his head. The appellant said he gave the Toronto Three Mr. Swan's name and address before they left." (Para 12)

The Buchanans went to the police (Para 13)

"On September 9, 2010, the police re-interviewed Messrs. McLellan and Mullen separately. During those interviews, the police advised that they knew that the appellant had met with the Toronto Three on the evening of the home invasion. Mr. McLellan declined to say anything further, but when the officers told Mr. Mullen that the appellant was saying that the Toronto Three had threatened him, Mr. Mullen vigorously denied the allegation. He told the officers that the appellant had given them clothing to wear and agreed with the police's suggestion that the appellant had shown them Mr. Swan's house." (Para 14)

"On November 16, 2010, the police re-interviewed Mr. McLellan. When Mr. McLellan was told that the appellant had alleged that he had put a gun to the appellant's head, Mr. McLellan made a statement implicating the appellant in the robbery plot. Mr. McLellan told the police that he met the appellant at Mr. Barnett's house over the 2009 Christmas holidays and that the appellant told them that he knew "a guy that has lots of weed and money" and suggested that "you guys can rob him". He further advised that two months later on February 21, 2010, Mr. Barnett contacted him saying, "tonight's the night". He agreed with an officer's suggestion that the appellant had shown them Mr. Swan's house that evening. In addition, Mr. McLellan said that the appellant had given them clothes to wear during the robbery." (Para 15)

"At his October 2013 trial, Mr. McLellan testified in his own defence. He admitted to being the shooter. However, he claimed that the gun had gone off accidently. Mr. McLellan implicated the appellant in the robbery plot, but his testimony was not entirely consistent in this regard with his November 2010 police statement." (Para 16)

"At the appellant's trial, the Crown attempted to call Messrs. McLellan and Mullen as witnesses. They both refused to testify. The Crown brought an application to admit Mr. Mullen's September 2010 police statement, along with Mr. McLellan's November 2010 police statement and October 2013 trial testimony, all for the truth of their contents. The trial judge ruled that the police statements could be admitted but refused to admit Mr. McLellan's trial testimony." (Para 17)

The Principled Exception to Hearsay and R v Bradshaw

"The court placed strict limits on the use of corroborative evidence to establish threshold reliability. It can only be used if it "shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement" [emphasis added]: Bradshaw, at para. 44. To be clear, the corroborative evidence must go to the truthfulness or accuracy of the material aspects of the hearsay statement, as the purpose of the corroborative evidence is to mitigate the need for cross-examination on the very point for which the hearsay evidence is tendered: Bradshaw, at para. 45." (Para 25)

"Justice Karakatsanis, writing for the majority, stated that in assessing threshold reliability, "the trial judge's preoccupation is whether in-court, contemporaneous cross-examination of the hearsay declarant would add anything to the trial process": Bradshaw, at para. 40. Therefore, to overcome the hearsay dangers and establish substantive reliability, corroborative evidence must show that the material aspects of the statement are unlikely to change under cross-examination: Bradshaw, at para. 47. If alternative explanations for the statement could have been elicited or probed through cross-examination, the hearsay dangers persist and the statement should not be admitted. This standard will not be met where the corroborative evidence is equally consistent with another explanation. The corroborative evidence must show on a balance of probabilities that the only likely explanation for the statement is the truth or accuracy of the material aspects of the statement." (Para 26)

"Justice Karakatsanis provided, at para. 57, the following four-step framework for determining whether corroborative evidence meets the test of threshold reliability:

In sum, to determine whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial judge should

1. identify the material aspects of the hearsay statement that are tendered for their truth;

2. identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;

3. based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and

4. determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement. (Para 27)

"It is important to recognize that the Supreme Court's ruling in Bradshaw created a much more onerous test for the admission of a hearsay statement than existed at the time of the appellant's trial. As Chris D.L. Hunt and Micah B. Rankin described in their article, "R. v. Bradshaw: The principled approach to hearsay revisited" (2019) 22:1 Intl. J. Evidence & Proof 68, at p. 74:

. . . the majority's framework creates a far more restrictive standard for the admissibility of corroborative evidence. This is reflected in the second and third steps of the new framework; namely, the requirement that trial judges identify alternative (and even speculative) explanations for the hearsay statement and the requirement that the corroborative evidence must show the truthfulness of the statement to be the only likely explanation. As Justice Moldaver observed in dissent, this approach appears to mean that "for a piece of corroborative evidence to make its way onto the evidentiary scale for threshold reliability purposes, it must effectively be independently capable of tipping the scale". [Emphasis in original.] (Para 28)

Application of Bradshaw to the Facts

"The application of the four-step framework provided by the Supreme Court in Bradshaw to the statements of Messrs. McLellan and Mullen makes clear that they should not have been admitted for the truth of their contents." (Para 30)

"Turning to the first part of the analysis, the material parts of the statements being tendered for their truth were: (i) that the appellant had given the Toronto Three clothing to wear during the robbery, and (ii) that the appellant had driven out with the Toronto Three to Mr. Swan's house to point out the location of the residence. In addition, in Mr. McLellan's statement he told the police that the appellant had first proposed the idea of robbing Mr. Swan when they met at Mr. Barnett's father's home over the Christmas holidays." (Para 31)

"The second part of the analysis reveals that the primary hearsay danger raised by those aspects of the statements is the difficulty in ascertaining the sincerity of the claims regarding the appellant's alleged involvement in the robbery." (Para 32)

"The third part of the analysis invites the court to consider alternative, even speculative, explanations for the statements. In the circumstances of this case, there are several alternative explanations for both statements." (Para 33)

"With respect to Mr. Mullen, there were four potential motives... First, the appellant ...implicated them in a further crime. Second, the police suggested ... the appellant's account might lead a jury to conclude that the Toronto Three had planned in advance to shoot Mr. Swan. Third, the police suggested to Mr. Mullen that the appellant was ...going to "buddy up . . . with Dylon's side and fuck you [Mullen] . . . " Fourth, Mr. Mullen was upset ...this gave him an incentive to falsely implicate the appellant out of spite. I accept that these are all credible explanations for Mr. Mullen's statement." (Para 34)

"With respect to Mr. McLellan, [there were] three potential motives to falsely implicate the appellant.... First, ... the appellant's statement implicated Mr. McLellan in a further crime. Second, the appellant .... put Mr. McLellan in possession of a gun before the shooting. Mr. McLellan, at the time, was denying being the shooter, giving him a further motive to discredit the appellant. Third, as the trial judge noted, it was possible the pair had a conversation about Mr. Mullen's September 2010 police statement. This fact, coupled with a police suggestion to Mr. McLellan that the best way to discredit the appellant was by supporting Mr. Mullen's statement, provided Mr. McLellan with a motive to corroborate the account that Mr. Mullen had previously given to police. I accept these as valid potential motives for falsely implicating the appellant." (Para 36)

"The appellant submits that the trial judge erred in relying on the statements as being mutually corroborative. I agree. It is possible that Messrs. Mullen and McLellan discussed Mr. Mullen's September 2010 statement to the police before Mr. McLellan spoke to the police. In addition, it is clear that material parts of the statements were influenced by leading questions and suggestions made by the police. As Bradshaw makes clear at para. 50, corroborative evidence must be trustworthy and this evidence was not." (Para 37)

"The trial judge also relied on corroborative evidence that did not implicate the appellant. ... [This approach] was rejected by the majority in Bradshaw for use in the analysis of the admissibility of hearsay statements under the principled approach: see Bradshaw, at paras. 44-47. Therefore, the trial judge erred in relying on any evidence that does not go to the material aspects of a hearsay statement." (Para 38)

Author's Note: The Crown argued four categories of corroborative evidence still supported admission.  The Crown's argument was dismissed, but two categories are reproduced to demonstrate that even speculative explanations are sufficient to dislodge corroborative evidence.

"First, the Crown relies on the evidence regarding the recovery of the black hoodies worn by the Toronto Three at the time of their arrest, including one with an Ohio State logo. The appellant's sister attended that school at the time." (Para 40)

"In my view, the Crown has not met the test for the admission of the hearsay statements as articulated by the Supreme Court in Bradshaw. For example, the evidence regarding the clothing does not remove alternative scenarios regarding its source. In his statement, Mr. Mullen pointed to the appellant as the supplier of the masks used in the robbery, while Mr. McLellan testified at his trial that he was the one who supplied the masks. Moreover, there is no independent evidence to support the theory that the appellant supplied the clothing." (Para 45)

"Finally, the Crown submits that although the trial judge did not rely on the cell phone evidence, it is also corroborative of the statements. That evidence suggested that the appellant could have been near Mr. Swan's home, rather than at his own home, shortly before the home invasion and is inconsistent with the appellant's story about being threatened." (Para 43)

"The cell phone records are evidence that the appellant was closer to Mr. Swan's residence than to his own home before the home invasion. However, even those records are subject to debate, as the expert evidence at trial made clear that cell phones signals do not always bounce off of the nearest cell phone tower and tend to identify only a general area where the cell phone might be located." (Para 49)

"In summary, looking at the corroborative evidence as a whole, I cannot be satisfied on a balance of probabilities that it rules out alternative explanations, such that the only remaining likely explanation for the statements is Messrs. Mullen and McLellan's truthfulness. This is not a situation where cross-examination would be of no benefit. Crossexamination could well cast doubt on the truthfulness of the statements. Accordingly, I conclude that the trial judge erred in admitting the hearsay statements." (Para 50)

"The hearsay statements were important parts of the Crown's case against the appellant. They were the only evidence directly tying him to the planning and execution of the home invasion. They cannot be said to be inconsequential. Nor do I find that the admissible evidence establishes an overwhelming case against the appellant. I conclude, therefore, that there must be an order for a new trial." (Para 53)

R v Penfold-Brown (ABPC) 

[Feb 21/19] Section 7 Violation - Conditions of Detention and Release - Section 24(1) Remedies: Stay of Proceedings - 2019 ABPC 40 [C.L. Daniel Prov. J.]

AUTHOR’S NOTE: In this decision, Judge Daniel analyzed the indifference of police to the conditions of detention and release of a man who lost control of his bowels due to intoxication.  The Crown argued for a conviction without any penalty as a sufficient remedy under s.24(1); the Court concluded nothing save staying the charges in this case was sufficient to disassociate the Court from the conduct of the authorities.

Pertinent Facts

"The Accused is charged with operating a motor vehicle while his ability to do so was impaired by alcohol and when the blood/alcohol level in his body was over .08." (Para 1)

"The Constables responded to an accident around 11 p.m. on Christmas Day. Upon arrival, they found the Accused passed out behind the wheel of his motor vehicle, which had hit a parked car. There was minimal damage and no restitution request. That night it was -27." (Para 3)

"The Accused's breath smelled strongly of alcohol. He was manifestly unsteady on his feet and had to be assisted with walking, lest he fall over. He was physically resistive, uncooperative, and verbally confrontational. The Arresting Constable noted that it appeared the Accused had urinated himself, as there was a darkened area on his groin and down his pant legs." (Para 5)

"He arrived at APU at 0129 and was ultimately released at around 0830 on Boxing Day." (Para 9)

"The Crown did not introduce any information as to what transpired in that 7 hour period of time at APU. There is no evidence regarding what happened to the Accused, save for the Accused's own evidence in that regard, which was minimal, but alarming. One Crown witness disclosed that he knew a change of clothing was available at APU, and I take that to be the case." (Para 10)

"The Accused remembered nothing of the material events, save what happened after he awoke on the cement floor of a cold cell at APU in a puddle of his own urine and vomit. He was soaking wet, shivering and dry heaving. He was wearing a long sleeved shirt and jeans. His clothes were wet. He called for help, wanting to know why he was there and what had happened. Eventually, a small cell sliding window opened and a female voice said: "Alcohol". The window closed and he was left alone in the cold cell." (Para 11)

"He again called out for help, asking for a blanket, and to go to the bathroom. No one responded. He said he called out for about an hour, but then decided to use the drain in the cell floor. He took off his shirt, hanging it somehow on the cell bars for some privacy and then urinated in the drain. At some point he was told to take down his shirt, so he put it on again. Obviously, someone in authority was monitoring the cell. He then curled up in a ball in a fetal position and passed out again. There was no toilet or sink in the cell, nor was there any raised bench seat to get off the floor. The Accused was frightened." (Para 12)

"Eventually, a male guard retrieved him and told him he had nothing else for him to wear. He was given his personal effects and led to a side exit door. No one offered him a ride home. He was released wearing his wet jeans, wet shirt and shoes. He smelled of urine and vomit. He was not offered a phone to call someone to pick him up or to call a cab to pick him up at the door. Instead, he was told to go out to the street to catch a ride home. It was still in the -20's. He waited fifteen minutes for the first cab to wander by, but the driver took one look at him and refused to let him in his cab. A second roving cab took him home about 5-10 minutes later." (Para 13)

The 24(1) Remedy of a Stay of Proceedings

"Crown and Defence agreed that the case law indicates that the Accused's entire time in custody should be determined to be one continuous transaction (Nasogaluak). Crown also agreed that the Accused's treatment at APU offended s. 7 of The Canadian Charter of Rights and Freedoms (Charter)." (Para 15)

"In Babos, the Supreme Court indicated that a judicial stay of proceedings is considered the most drastic of remedies and is warranted only on rare occasions in the "clearest of cases" (para 31). Crown and Defence in the instant case agreed that the state's conduct created no threat to trial fairness, but risks undermining the integrity of the judicial process. In describing this 'residual' category, the Court stated at para 32:

1. There must be prejudice to an accused's right to a fair trial, or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" (Regan, at para 54);

2. There must be no alternative remedy capable of redressing the prejudice;

3. Where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interests that society has in having a final decision on the merits" (ibid., at para 57).

"Further, at para 35, the Court stated:

By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial - even a fair one - will leave the impression that the justice system condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met." (Para 17)

"One of the considerations is whether or not the APU incident is isolated or whether it reflects a systemic and ongoing problem. This Court has no information in that regard at all, as no evidence with respect to the Accused's experience at APU was adduced save for his own." (Para 22)

"In the Stoney case, however, a stay was granted. That accused was refused bathroom facilities when he requested them, and eventually urinated in his pants. The police detained that accused for a prolonged period of time, failing to provide him with any warm clothing or even a change of clothing, when he was clearly suffering from the cold over a period of 9 hours. Clothing changes were available at the station. The Court held that "such lengthy detention in wet pants would prolong the discomfort and indignity of the situation even in reasonably comfortable custodial conditions" (para 11)." (Para 26)

"In Sathymoorthy, the accused drove while impaired and caused an accident. He was placed in the police cruiser, where he urinated his pants. The police were aware of this but did not provide dry clothing. They left him in that soiled state for 10 hours and subjected him to mocking. The Court therein held there was a need to sanction police behaviour and change institutional thinking, stating at paras 10 and 11:

10. During the parading process, the police were aware the accused was wet with urine from the waist down. The arresting officer conceded she gave no thought to having a family member bring dry clothing or providing some herself. I inferred little concern on the part of the authorities about the dignity and minimal comfort of their detainee who was made to provide breath samples while still wet, likely cold and in bare feet. (Para 27)

"A stay was granted, with the court observing at para 37 and 38:

37. Put a different way, even a questionable reduction in sentence, below the mandatory minimum, as an alternative remedy in the face of this Charter violation that made no practical difference to the legal result for the accused would provide little incentive for the widespread change of attitude and behaviour that is necessary in such circumstances." (Para 29)

Application of the Law

"The circumstances of the Accused's detention at APU are extremely offensive. On his evidence, the Accused lay in soiled, wet clothing on a cold cell floor for as much as 7 hours. His pleas to use the toilet facilities and get a blanket fell on deaf ears, thus indicating a wilful indifference on the part of authorities."  (Para 32)

"What is extremely aggravating, is that he was indifferently released into the frigid winter cold of -27 degrees, wet and smelly, without a coat or blanket, to take his chances on finding a taxi to take him home. The police did not offer him a phone so he could call a friend to arrange a pick-up, or call a taxi to pick him up at the police station door. The police did not offer to give him a ride home. He was thus forced to attempt to flag down a passing taxi early on Boxing Day morning. Happily while the first taxi refused him, the second taxi driver took pity on him and gave him a ride. In any event, he spent about 20 minutes inadequately dressed in the freezing cold." (Para 33)

"Police exhibited a callous disregard for the Accused's comfort and welfare. That indifference to his basic human needs and dignity escalated in its seriousness over the nine hours he was actually in their custody, and culminated in its egregiousness when they mercilessly released him wet and underdressed into the freezing cold." (Para 34)

"In my view, this treatment shocks the community's conscience and offends its sense of fair play and decency. This Court must disassociate itself from such conduct and condemn it in no uncertain terms. No other remedy but a stay is appropriate in the totality of all these circumstances." (Para 35)

R v Salehi (BCSC)

[Feb 20/19] – Section 9 Violation - Failure to Bring Accused before JP within 24hrs - Section 24(2) Remedy: Exclusion of Statement  – 2019 BCSC 197 [Devlin J.]

AUTHOR’S NOTE: In this case, the police failed to bring the Accused before a JP within the 24hrs required by the Criminal Code.  While failing in their duty to do this, they also continually sought and obtained a statement from the accused in a murder case.  The result was their efforts resulted in an exclusion of evidence, despite the fact that the statement was ruled voluntary.

Pertinent Facts

"Maurio Salehi is charged with two counts of first degree murder relating to the deaths of Iryna Gabalis and Dmitri Faktorovski between July 14 and 16, 2015 in Coquitlam, BC." (Para 1)

"On July 21, 2015, at 14:28 hours, Mr. Salehi was arrested on two counts of murder by Sgt. Bal, assisted by Cpl. Jason Kelders. This arrest was planned and took place five days after the police commenced their investigation into the two homicides." (Para. 7)

"Shortly after 2 p.m., as Mr. Salehi departed the medical building, Cpl. Kelders approached him. Mr. Salehi was then introduced to Sgt. Bal who proceeded to arrest him for two counts of murder." (Para 10)

"At 1:03 p.m. Inspector Cocks was advised by Crown counsel that they needed to transport Mr. Salehi to court as soon a possible as defence counsel had arranged for Mr. Salehi to appear before a judge in court. At 1:08 p.m. Inspector Cocks met with the investigative team and advised them of the change of plans and the need to get Mr. Salehi to court as soon as possible. Inspector Cocks directed Sgt. Bal to prepare the Information and Cst. Campbell to prepare a draft summary of the investigation for court. Sgt. Bal and Cpl. Kelders were directed to transport Mr. Salehi to the courthouse. Inspector Cocks conveyed to his team that this had to be done as soon as possible due to the requirements of s. 503 of the Code and the fast approaching 24 hour deadline. This change of plans appeared to have caused some confusion among the police officers as to what was required in order to have Mr. Salehi appear in court." (Para 25)

"At 1:30 p.m., Cst. Campbell completed the summary of facts for court. While preparations were underway to transport Mr. Salehi, Sgt. Bal told Cpl. Kelders that he intended to speak to Mr. Salehi enroute to court to try and obtain a statement from him. Sergeant Bal was aware the interview team had not obtained a statement from Mr. Salehi and he felt he had a better rapport with him. Sergeant Bal testified that he also briefly mentioned to Sgt. Fox in passing of his plan to speak to Mr. Salehi. Inspector Cocks testified he was never advised of Sgt. Bal's plan. Sergeant Bal was aware that pursuant to s. 503 of the Code the police were obligated to have Mr. Salehi appear before a justice within 24 hours of his arrest." (Para 26)

"At 2:20 p.m. they arrived at the courthouse. Cpl. Kelders parked the van in the front of the courthouse and immediately got out of the van. The courthouse video shows that he ran into the courthouse upon exiting the van." (Para 28)

"While Cpl. Kelders was out of the vehicle, Sgt. Bal continued to speak with Mr. Salehi in an effort to obtain a statement. About four minutes later, Cpl. Kelders returned to the van. As Cpl. Kelders opened the driver side door of the van and Sgt. Bal said to him, "Jason, do you mind if I could just have a minute please? Do you mind if we could have privacy, please?"" (Para. 29)

"Once Cpl. Kelders left the van, Sgt. Bal continued to speak with Mr. Salehi about his circumstances and Mr. Salehi told him "I would love to explain it very soon with my lawyer" and "I would love to you be patient with me and . . . .you'll find out". Mr. Salehi then changed the topic and explained to Sgt. Bal the meaning of his family name. Sergeant Bal then changed the topic to how Mr. Salehi broke his arm, suggesting that he got it trying to fight back. As Sgt. Bal is speaking to Mr. Salehi, his phone is captured in the recording as buzzing loudly. It is evident from the recording that Sgt. Bal ignored the incoming phone call." (Para 31)

"As Sgt. Bal continued to ask Mr. Salehi about his broken arm his phone buzzes again. After a few moments Sgt. Bal answered his phone. Inspector Cocks can be heard telling Sgt. Bal "you gotta get him inside like right now . . . ..take him to the sheriffs" with reference to taking Mr. Salehi to the courthouse sheriffs. Sgt. Bal then advised Mr. Salehi they are ready for them inside and at 2:29 p.m. they are observed in the video recording exiting the van and walking towards the courthouse." (Para 32)

"As they walked towards the entrance to the courthouse, Sgt. Bal asked Mr. Salehi if he was attacked and if had to defend himself. By this time, Sgt. Bal was aware it was well past the 24-hour limit. However, Sgt. Bal can be seen stopping inside the entrance of the courthouse to speak with Mr. Salehi in an effort to elicit further details of the murders. As Sgt. Bal continued to try and obtain further information from Mr. Salehi, Cpl. Kelders came to meet them and walked them towards the Sheriff's Office. As they walk, Sgt. Bal continues to ask Mr. Salehi for details, and as they approach the Sheriff's Office he tells Mr. Salehi, "we're gonna go there so please tell me"." (Para 37)

Charter s.9 and the Requirement to Bring and Accused Before a JP within 24hrs

"The parties agree that the police failed to comply with the requirements of the s. 503(1) of the Code because they failed to bring Mr. Salehi before a justice without unreasonable delay within twenty-four hours where there was no indication that a justice was not available. The parties also agree that the non-compliance with s. 503(1) resulted in the unlawful detention of Mr. Salehi. However, they disagree as to the implications of his unlawful detention." (Para 58)

"In summary, Sgt. Bal transferred Mr. Salehi to a sheriff 21 minutes past the 24-hour time limit mandated by s. 503(1) of the Code."  (Para 65)

"The foundational principle behind s. 503 of the Code is to safeguard a non-convicted accused's liberty and to ensure that he or she should not be held in custody except in accordance with the Code or legislation (R. v. Simpson (1994), 88 C.C.C (3d) 377 (Nfld. C.A.) rev'd [1995] 1 S.C.R. 449 (S.C.C.) [Simpson]). In order to accomplish this, one purpose of s. 503 is to require that the accused come out of police custody into judicial supervision within the 24 hours or without unreasonable delay to ensure the ongoing protection of the appellant's Charter rights. (R. v. Poirier, 2016 ONCA 582 [Poirier] at para. 58; see also R. v. Butorac, 2010 BCSC 1173 [Butorac])." (Para 68)

"Moreover, the Court in Poirier makes it clear that compliance with s. 503 is "not simply a matter of form" (at para. 58). In that case, the police obtained a general warrant to facilitate a "bedpan vigil" but the warrant was found to be invalid because it purported to authorize detaining the accused indefinitely without bringing him before a justice in contravention of s. 503 of the Code. The Court noted that it would not have mattered whether the accused would likely not have been released by a justice while that search was conducted. What was important was that if the police had complied with s. 503, "the manner in which the appellant continued to be detained would have been subject to court supervision . . . [which] would have changed [the appellant's detention] from being a detention pursuant to the execution of the general warrant to a court monitored detention that ensured the ongoing protection of the appellant's Charter rights." (at para. 58). [Emphasis added]. Poirier indicates that s. 503 requires that an accused be brought before a justice ""without unreasonable delay", not just within 24 hours": at para. 61." (Para 70)

"In summary, it is clear from the cases that the importance of s. 503 of the Code and the protections it extends to accused persons cannot be understated. The tone of the section is prescriptive. The police cannot dispense with the time limits in s. 503 to further detain the accused where it would constitute unreasonable delay or where it would exceed the 24 hour limit. They cannot treat s. 503 as hortatory in pursuit of their investigative agendas no matter how favourable it is for them to extract a confession or locate evidence. The law is clear that the transition of an accused from police custody into the sphere of judicial supervision is integral to the ongoing protection of the accused's Charter rights. Most importantly, it prevents the insulation of the accused by the police from any judicial review of the police procedure to which the accused may be subject." (Para 74)

"As discussed earlier in these reasons, the police in Poirier conducted a "bedpan vigil search" pursuant to a general warrant. The accused was detained at the police station for a total of 43 hours before being brought before a justice of the peace. In finding that the provisions of s. 503 are mandatory and cannot be overridden by the terms of a general warrant the Court found a breach of s. 9. In doing so the Court stated:

89 Finally, in my view, the failure by the police to bring the appellant before a justice of the peace without delay constitutes an arbitrary detention contrary to s. 9 of the Charter. As the Court of Appeal for Newfoundland and Labrador stated in Simpson, a violation of s. 503 must be viewed as an arbitrary detention whether the failure to comply with s. 503 was deliberate or simply neglectful. I agree with that conclusion." (Para 81)

"Poirier and Ashmore demonstrate that the fact a detainee is not eligible to be released by a justice does not mitigate the breach that flows from the police's failure to comply with s. 503. Rather, these authorities confirm that if the police do not have lawful authority to detain a person, that detention is unlawful and necessarily arbitrary as stated in Grant." (Para 83)

"Poirier, Ashmore, Chung and the other cases discussed above all follow the rationale set out at paras. 54-55 in Grant — that is, a detention that is not authorized by statute or common law is arbitrary and is a breach of s. 9 of the Charter. Accordingly, I see no support for the Crown's argument that Grant does not pertain to detention that arises as a result of a lawful arrest." (Para 92)

"In the event I am incorrect in my reliance on Grant, I would find that Mr. Salehi was arbitrarily detained when Sgt. Bal intentionally prolonged his detention in police custody and delayed his being brought before a justice without unreasonable delay or within 24 hours, for the sole purpose of eliciting a confession. I agree with counsel for Mr. Salehi that Sgt. Bal made a calculated choice to prioritize the investigation over Mr. Salehi's constitutional rights. This cannot be endorsed." (Para 93)

The 24(2) Analysis

"I find that Sgt. Bal's Charter-infringing conduct is serious. Sergeant Bal was well aware of the requirements of s. 503 and the urgency of the situation before he departed the detachment for the drive to the courthouse. This was not a situation where there was some legal uncertainty regarding what was required under s. 503 of the Code. I agree with counsel for Mr. Salehi that Sgt. Bal made a calculated decision to prioritize the investigation over Mr. Salehi's Charter rights. I do not accept Sgt. Bal's explanation that he simply took advantage of the opportunity that presented itself. Indeed, I find that Sgt. Bal orchestrated and structured the delay in order to extract a confession from Mr. Salehi." (Para 106)

"In my view the calculated breach of Mr. Salehi's s. 9 Charter right is serious and militates in favour of exclusion." (Para 110)

"I find that Sgt. Bal demonstrated the same disregard of his obligations under s. 503 and cast aside the protections to Mr. Salehi's s. 9 right. In my view, neither the fact that Mr. Salehi chose to speak to Sgt. Bal nor the fact that he would not have obtained release because of the nature of the charges reduces the seriousness of the impact of the breach upon his Charter protected rights. There was no justification or authority in these circumstances to permit Sgt. Bal to deliberately prolong Mr. Salehi's detention for the sole purpose of obtaining a confession." (Para 114)

"In my view, the Court cannot be associated with conduct which deliberately and flagrantly breaches a core constitutional right. I cannot permit the admission of Mr. Salehi's statements. A qualitative assessment of all the evidence indicates that the integrity and the long-term repute of the justice system will be marred by admitting his statements derived in blatant disregard for his constitutionally guaranteed liberty interests by Sgt. Bal in pursuit of a confession. The Court cannot endorse overzealous police conduct that steamrolls over an accused's Charter rights. To endorse this is to ignore Mr. Salehi's constitutional guarantee that he is not to be subject to the whim of the police, but to be the subject of administered justice in which the public can repose its confidence." (Para 120)

On balance, the evidence was excluded (Para 121)

"I find the impact of the breach on Mr. Salehi's Charter-protected interests militates in favour of exclusion." (Para 115)

About the Author:

Pawel is a partner at Sitar & Milczarek. When he's not litigating he writes the Defence Toolkit blog.