R. v. Datta, 2010 ONCJ 178

COURT FILE No.: 2811-998-09-13389 DATE: May 4, 2010 Citation: R. v. Datta , 2010 ONCJ 178 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — NOEL DATTA Before Justice M. Block Heard on February 18, 2010 Reasons for Judgment released on May 4, 2010 J. Gleiberman .............................................................................................. for the Federal Crown J.

Filiberto............................................................................................ for the accused Noel Datta BLOCK, J.: OVERVIEW [ 1 ] The weather on July 15, 2009 was a break from the usual heat and humidity which afflict southern Ontario in the summer. It was a fine afternoon for outdoor athletic recreation. Noel Datta joined a pick-up basketball game in an Ajax park around 5:00pm.

Unfortunately, Datta was on a recognizance requiring him to be in his residence except in the direct presence of his surety. [ 2 ] On July 15, 2009 Noel Datta was charged with failure to comply with that recognizance. The only incriminating evidence called by the Crown was an admission he made to the investigating police officers that his surety was not present. His counsel argues that he was detained before making this admission.

Defence counsel argues that his rights under s10a and 10b of the Charter of Rights and Freedoms were violated and his admission should be excluded from evidence at trial pursuant to s. 24(2). Counsel agreed that the result of the Charter application would dispose of the case. EVIDENCE [ 3 ] Noel Datta was charged with possession of a

schedule one substance for the purpose of trafficking on January 7, 2009 and subsequently released on a recognizance, filed as Exhibit 1 at trial, with the provision described in paragraph 1. [ 4 ] On July 15, 2009 Police Constable Jeff Capener received information form another police officer that Datta was playing basketball in a north Ajax park with 8-10 other persons and was subject to the recognizance described above. Capener attended the park with Police Constable Chambers, and Sgt. Moore.

[ 5 ] After identifying Datta, Capener and the other officers approached the basketball players. Although none were in uniform Capener agreed that they were easily identifiable as police because of the badges hanging from their necks and the holstered firearms at their sides. Capener called out to Datta and asked him to come over and talk.

Datta complied and was arrested following this exchange: Capener -“are any of these people at this basketball game one of your sureties as ordered by the court? ” Datta -“no, they’re not” Transcript of the evidence at trial p.6 He was advised of the nature of the charge and his rights to counsel after his arrest. [ 6 ] Capener testified that he didn’t immediately arrest Datta on approach because he didn’t have the surety’s name and didn’t, in fact, know whether the surety was present or not.

Under cross-examination Capener denied that he was satisfied that Datta was breaching his bail as soon as he identified him at the park: “not knowing the other people that were playing basketball, again there were still a number of other people that were present there that could have been Mr Datta’s surety. … I wanted to find out if one of those people in fact were his surety in which case he would not have been arrested. He would not have been failing to comply with any of his release conditions.

I think it was kind of a central question to ask, to be fair to Mr Datta.” Transcript p. 12 [ 7 ] Capener agreed that Datta would not have been permitted to simply walk away from the discussion. He stated that Datta would have been “intercepted” had he sought to leave. Capener suggested the considerations of officer safety made a low-key approach to Datta appropriate. Datta had been asked to come over in a way that avoided confrontation between the three police officers and the larger group of basketball players. The police officers did not know that Datta had joined a pick-up game with strangers.

They anticipated potential difficulty if the other players were friends of the accused. [ 8 ] Police Constable Tom Chambers testified. His evidence was not entirely consistent with that of Capener. He ultimately agreed with defence counsel, after refreshing his memory with his contemporaneous notes, that he and his fellow officers were satisfied that Datta was not with his surety prior to the approach.

He said their level of certainty was not “ beyond a reasonable doubt“ and they wanted to give Datta the opportunity to prove his surety was present to avoid arrest. [ 9 ] Datta testified that he felt he was under a duty to come over to the police when told to do so. He told the court that he answered Chambers’ question because he was intimidated by the police and the guns and badges they displayed. He stated that if he had been told the reason for the police interest and of his right to counsel he would spoken to a lawyer to see if he had to answer the police.

Under cross-examination he agreed that he was 25 years old. He reluctantly admitted familiarity with the arrest procedure. The tenor of his evidence was that he felt he had no choice but to come over to the police and answer the question posed to him. I reject his attempt to portray himself as a naïf who was unaware he didn’t have to answer police questions. Datta’s three-word confession was not the result of police intimidation. It was simply an unconsidered acknowledgement of the obvious.

CHARTER ISSUES WAS DATTA TOLD THE REASON FOR HIS DETENTION? [ 10 ] The reason for the police interest in Datta was told to him within seconds of their approach. I am satisfied that the police advised Datta immediately after arrest of the reason for the arrest and his right to counsel and that they facilitated the exercise of the right to counsel on his arrival at the station. WAS DATTA DETAINED? [ 11 ] The issue of whether Datta’s 10b rights were breached turns on whether he was detained at the time he made the admission that is the heart of this case. It is conceded by the Crown that he was not advised to his right to counsel pursuant to

section 10b of the Charter before that admission. The crown advanced the position that Datta was not detained when he made his basketball court confession or, in the alternative, that he was detained for a brief investigation which did not trigger a right to counsel. The former submission does not survive analysis of the facts as prescribed in Her Majesty the Queen v Grant , 2009 SCC 32 (CanLII) , [2009] S.C.J. No. 32 (July 17, 2009). The latter submission perishes with passing acquaintance of Her Majesty the Queen and Suberu , S.C.J.No.33 (July 17, 2009). [ 12 ] The state of the law is now clear.

Not every encounter with the police or delay a person experiences as a result of police investigation is a detention. When a person is physically restrained or when a reasonable person would conclude that they have no choice but to comply with a significant restriction on their movement that person is detained within the meaning of s.10b of the Charter and advice of the right to counsel by police is mandatory. [ 13 ] I must apply the criteria set down by the Supreme Court of Canada in Grant to determine if Datta was detained at the time he confessed his breach of recognizance.

Since Datta was not under physical restraint at the time of his confession is must be determined whether he was psychologically detained. I make the following findings: 1. Police conducted an investigation that focused from the outset on the alleged breach 2. Police already had reasonable and probable grounds to believe Datta was breaching his recognizance when they arrived at the park 3. Police tactics aimed at isolating Datta from other basketball players 4.

Datta would not have been permitted to end the discussion by simply leaving [ 14 ] I conclude that Datta was detained prior to his confession that no surety was present and that his rights to counsel were breached when he was asked whether his surety was present without prior s.10b Charter advice. CHARTER s.24(2) ANALYSIS [ 15 ] I am required to apply the three-part test set out by the Supreme Court of Canada in Grant , supra, to determine whether the admission of the evidence arising from the breach of Datta’s 10b rights would tend to bring the administration of justice into disrepute.

SERIOUSNESS OF THE BREACH [ 16 ] The breach was neither flagrant nor wilful. The questioning was the briefest possible and the police refrained from asking further questions once their suspicions of Datta were confirmed.

[ 17 ] The police conduct is mitigated by good faith in several different ways: 1. Datta was arrested several days before the Supreme Court of Canada released its ruling in Grant and the law concerning investigative detention was unclear at the time of the investigation. 2. The conduct of the police was calculated to avoid a bogus arrest. The police were looking for confirmation or contradiction of their reasonable belief that Datta was breaching his recognizance during their brief investigation on July 15, 2009. They took a common sense approach.

They wanted to avoid any safety issues that might be associated with a canvass of the other basketball players to see if the surety was present. They asked a question which, if answered, would either confirm their belief and result in Datta’s arrest or indicate the presence of a surety and lead to his speedy release. I conclude that gathering evidence was not their primary purpose when the question was posed. The police should have given Datta his Charter rights on determining his identity.

However, it is difficult to find grave fault when the impugned question was asked in order to avoid an unfounded arrest. [ 18 ] Effective police investigation would not have been frustrated had Datta had been advised of his rights under s.10b. He would still have had an opportunity to point out the presence of his surety. He might have inculpated himself. If he had stood silent the police already had the reasonable and probable grounds for arrest and could have continued the investigation. It is unfortunate that crown didn’t present evidence other than the disputed admission.

It may have been that the police never gathered other available evidence. Datta was arrested and taken under control without apparent reaction by the basketball players. They could have been canvassed to see if anyone present was Datta’s surety without the safety issues that were of concern before the arrest. Slightly more effort could have located the surety. In any case independent evidence of the breach would have been discovered with minimal effort. IMPACT OF THE BREACH ON DATTA’S CHARTER-PROTECTED RIGHTS [ 19 ] The impact of the breach itself was immediate and serious.

Datta created evidence against himself in response to a question aimed at the heart of the suspected offence. However, Datta was clearly aware that his right to be free of intrusive questioning was qualified. He was on a recognizance for a serious criminal charge. His liberty was sharply restricted as a condition of his release. Citizens should normally expect that their enjoyment of a pleasant game of basketball will not be intruded upon by police officers asking pointed questions. Datta had a very limited reasonable expectation of this kind of privacy.

SOCIETY’S INTEREST IN THE ADJUDICATION OF THE CASE ON THE MERITS [ 20 ] Unlike many conscripted statements the context of Datta’s confession assures its reliability. The statement is an un-scripted admission against interest in circumstances which suggest that Datta’s recognized that he was caught breaching his recognizance.

CONCLUSION [ 21 ] The commendable police intention to avoid an unfounded arrest, the unsettled state of the law at the relevant time, the absence of wilful, flagrant police misconduct and the reliable nature of the evidence compel the conclusion that the admission of the evidence will not bring the administration of justice into disrepute. The application is dismissed. The evidence of the confession is admitted. Mr Datta stands convicted of the offence of breach recognizance.

Released: May 4, 2010 Signed: “Justice M. Block”