R. v. Xu, 2020 ONCJ 371

CITATION : R. v. Xu , 2020 ONCJ 371 DATE : August 20, 2020 Ontario Court of Justice (Toronto Region) R v Shi Zhe Xu: Ruling on Voluntariness of Statement Heard: 28 February 2020; Judgment: 20 August 2020 (49 paras) Counsel for the Accused: Kim Schofield Counsel for the Crown: Christina Malezis Libman J: - Introduction [ 1 ] The accused is charged in these proceedings with a 5-count trafficking and possession of controlled substances and proceeds of crime information.

This ruling concerns whether a statement he made shortly after a search warrant was executed at his alleged premises has been proven to be voluntary by the Crown. I have previously ruled that the warrantless search prior to the issuance of the search warrant, and the search that followed, did not violate the accused’s right to be secure against unreasonable search and seizure. The evidence on the voluntariness voir dire commenced on 1 November 2019 and after two more court dates in January and February, concluded with submissions on 28 February 2020.

The date originally scheduled for judgment, 25 March 2020, was vacated due to the COVID-19 pandemic, and today’s date selected instead. Evidence on Voir Dire [ 2 ] On 16 March 2018, the accused was violently abducted at gunpoint by unknown parties. When the police were searching for his whereabouts, as well as other victims, who were friends of the accused, they effected an exigent circumstances entry into his premises PH 210, a condominium at 330 Alton Towers Circle, and discovered the drugs. The charges emanate from this occurrence. The accused was not physically present in his apartment at the time.

He was subsequently rescued from the trunk of the abductor’s car. [ 3 ] The officers who dealt with the accused shortly after his rescue noted he seemed very nervous and was in distress. His emotional state was shock. He was given medical attention after being released from the trunk of the car where he was bound and gagged. He did not know very much about what happened to him and was concerned for the well-being of his friends. There was the smell of alcohol on his breath. When he was interviewed by Detective Bartlett at about 3pm later that day, the sole focus was the kidnapping and nothing else.

He was not under arrest or investigative detention at the time. There was no mention, in fact, of the drugs that were located in the condominium. He was not advised that he was a suspect of any drug investigation. Following this interview, the accused was reunited with his girlfriend who had reported his abduction, and together they left the police station. [ 4 ] A search warrant was executed the following day, on 17 March 2018, at the Alton Towers residence. The search took place between 2:50pm and 5:45pm. The police left the condominium and locked the door when they were done.

A large quantity of drugs was seized at this time: over 3 kg of cannabis, almost 3 kg of ecstasy and over $9,000 in cash. [ 5 ] No one was in the unit when the police entered it. The searching officers were Klodt Brown, Bray and McIlhone. A seal on the door was broken to gain entry. Klodt agreed that the unit appeared to be lived in. He did not recall if there was both male and female clothing, but a number of items were located. [ 6 ] McIlhone, a police officer of over 10-years experience, broke the seal to enter the unit. He was also given the key to the unit.

He was aware the accused was the victim of a violent abduction the day before. During the course of the search he found some paperwork in the accused’s name, in the master bedroom. On these dated court documents, mostly from 2016, it gave as the accused’s address 37 Wincanton in Markham. The officer also acknowledged that during his search of the unit male and female clothing was located; there was ample evidence of personal use inside the unit. In one of the bathrooms there were three toothbrushes. [ 7 ] Subsequently, PC McIlhone was contacted by his CIB unit shortly afterward, at 5:52pm.

He was advised that the owner of the condominium unit, allegedly the accused, had called. He wished to pick up the key to the unit. In his testimony, the witness could not say who the officer was who advised him to meet the accused or the nature of their communication. [ 8 ] Consequently, the officer made plans to meet this person, the accused, at a nearby Tim Horton’s coffee shop located at 4228 Midland Avenue in Markham. He was not sure who made this arrangement, but it was not him.

They had never met before. [ 9 ] PC McIlhone was aware at the time the police were likely going to charge the accused with drug offences, although other factors were in play given the abduction of the accused the day before, and the decision to lay charges would not be his. He agreed, though, that the party was a probable accused and not just a suspect. [ 10 ] The officer met up with the accused at 5:58pm. He was in plain clothes and had arrived in an unmarked vehicle. Officer Brown accompanied him. The accused, who was already there, got out of his car, a black Mercedes, and approached the officer.

He identified himself when the officer asked to look at his identification. The accused gave him a driver’s licence. The officer recorded his name as

Shi Zhe Xu or “Steven” with a date of birth of 90/03/21. He did not ask him any further questions. [ 11 ] The officer also noted the accused’s address as listed in the driver’s licence: 330 Alton Towers Circle, PH 210, Toronto, Ontario, which matched the address where the officer and his team had previously searched and located the contraband. [ 12 ] The accused was given the key to this unit at this time by the officer.

It was the front door key. [ 13 ] According to McIlhone, after he handed over the key, he told the accused that the police had seized various items in the condominium, and that it was in his best interests that he should contact a lawyer as he may be charged with a number of offences. The officer then left the parking lot and returned to the police station, arriving by 6:10pm. [ 14 ] McIlhone testified that the interaction with the accused was very brief, lasting one to two minutes.

He did not threaten him, nor make him any promises or coerce him in any way. [ 15 ] The next day, 18 March 2018, charges were in fact laid against the accused. The offence date was 17 March 2018, that is, the day the Alton Towers unit was searched under the authority of the search warrant, and the accused retrieved the key to the unit. [ 16 ] In cross-examination the officer admitted that he did not expect that this conversation with the accused would be led in evidence as a statement.

He was aware of his obligation to keep a record of what an accused person says and what is done, and that if a statement is going to be elicited, the suspect should be advised of this before speaking to him. It was only after they spoke that the officer told him about the likelihood of being charged and that he should consult a lawyer. [ 17 ] It is common ground that Officer McIlhone did not provide the accused with a caution during their conversation, nor inform him of his right to silence, or seek his consent to seize his personal information contained in his driver’s licence.

Neither did he make him aware that this information could be used against him in evidence linking him to the condominium unit, and that he could refuse this request. [ 18 ] This conversation was not recorded or made the subject of a verbatim written account. He did not take verbatim notes and did not have a recorder on him. In hindsight he wished he had. In his notes made back at the station, he recorded his date of birth and name but not his address. [ 19 ] According to the witness, he only asked the accused for identification to make sure the key was being handed over to the right person.

It was not his intention to use his identification to link him to the drugs, and he did not ask him any questions about the drugs. The accused did not ask him any questions. If the accused had not provided him with this identification, he would not have turned the key over to him. The accused was not under arrest or detention at the time. [ 20 ] McIlhone stated that he was not the affiant or officer in charge, and it was not his decision as to what charges would be laid, He had merely assisted in executing the search warrant.

The extent of his conversation with the accused was that the accused indicated to him that he understood what the witness said, and McIlhone then went back to his car and returned to the station. He was not sure what the accused did before he departed. Position of the Crown [ 21 ] Crown counsel takes the view that these statements were made voluntarily and should therefore be received into evidence.

It has discharged its burden, she submits, to prove voluntariness in the circumstances of the case [ 22 ] In the Crown’s view, the police did not induce this conduct by the accused and did nothing to initiate the statement he gave. The accused simply wanted the key back to the unit and the police facilitated this request. This was a spontaneous drop off of his key, with nothing more.

The police treated the accused fairly and respectfully from the time they rescued him and brought him to the station and subsequently met him to return his key the following day. [ 23 ] She adds that the accused was acting on his own and he was free to do as he pleases. There is no evidence that he called for his key, or that he was doing something against his will. There is no evidence of any inducement. This was an administrative interaction at most. It is understandable that given this context McIlhone would not take any notes. The accused was not under detention.

He was not asked any questions apart from his identification so as to make sure he was entitled to possession of the key. In fact, the accused was out of custody at the time the search warrant was executed on his unit, and the focus of the investigation was clearly on his well-being and safety, as well as that of his friends.

It remained that way at the time he was given back his key, as evidenced by the lack of any questions on the drug investigation or contraband found during the execution of the search warrant, including the identification documents. [ 24 ] In the Crown’s view, the police did not appreciate or understand the evidentiary value of the interaction with the accused at the time. Indeed, they were not in uniform and met near a Tim Horton’s. McIlhone’s partner, Brown, did not bother getting out of the car.

An investigative procedure intended to elicit evidence, on the other hand, would take place at the police station. [ 25 ] It is further stated in this regard that there was no quid pro quo involved in the exchange of the key for the accused’s identification information. In any event, it is not every inducement that renders a statement involuntary. There is no nexus between that which is alleged and the accused’s decision to speak to the authorities. The accused was aware of what he was doing, and there was no police trickery or unacceptable form of deception or deceit.

In the circumstances, a lack of caution or warning to the accused is understandable, given the police themselves did not attach any significance to the encounter. [ 26 ] No aura of oppression or doubt as to operating mind is apparent from the accused’s interaction with the police. Indeed, after being informed that charges were likely pending, he did not ask any questions or evidence any confusion. The officer who was dealing with him did not attempt to gather any evidence in this regard but was merely confirming that the right person was being given his personal property back.

[ 27 ] In all the circumstances, the Crown submits, it has discharged its onus to demonstrate that the statements made by the accused have been proven to be voluntary on the standard of proof beyond a reasonable doubt. Position of the Defence [ 28 ] The accused resists tendering into evidence the accused’s statements as to self-identification as the owner of the unit at 330 Alton Circle, PH 210, where the drugs were seized, in addition to the information contained in his driver’s licence.

She submits that the Crown has fallen far short of meeting its burden to establish voluntariness. [ 29 ] In the defence view, the elements of fairness and the right to silence are implicated by the manner in which the police interacted with her client. The accused was essentially not put in the position to make a meaningful choice as to whether or not he should speak to the authorities.

At no time was he ever apprised, nor did he understand the risks, associated with speaking to the authorities, that is, the very purpose of the caution, which he was not given. [ 30 ] Moreover, he was barely one day removed from being rescued and in an obvious state of terror and distress, a fact well known to the very authorities who were dealing with him the following day. And if the accused did not appreciate the importance of actions evidencing ownership and control of the premises where the contraband was located, the officer who dealt with him, having participated in the search himself, certainly did.

Indeed, Officer McIlhone rightfully regarded him not merely as a suspect but a probable or likely accused at the time of their conversation. Indeed, it is telling that he advised him to consider speaking to a lawyer to get legal advice. Yet he only did so after the exchange of the key and confirmation of his identification had been secured. [ 31 ] At the time the key was returned to the accused, officer McIlhone was well aware that this was a drug investigation, front and centre.

Moreover, he was personally aware that there were items of evidence in the premises that connected the accused with the unit, such as documents in his name, but there were also items of evidence that rebutted this connection, such as an address in Markham for the accused, and items of clothing of other persons consistent with their personal use of the premises, and not exclusively his. [ 32 ] What could be more central to the police then, in relation to a likely charged person, and not merely a suspect, than evidence like his admission of ownership of the key to the unit and documentation on his person substantiating that fact.

This was hardly an administrative task, as the Crown characterizes it. And no competent investigator would fail to appreciate the significance of such evidence. [ 33 ] It is one thing, notes the defence, for the investigators to say they did not apprehend the significance of such evidence. But it is not for them to make the decision whether or not a likely accused would know to incriminate himself by speaking to them. And in these circumstances the officers admittedly failed to take steps to allow the accused to make a meaningful decision whether to do so or not.

In other words, if the officers did not appreciate the significance of the evidence, they did nothing to inform the accused of the significance of the evidence either. [ 34 ] The defence also notes that apart from the lack of any caution, the record is silent as to what led to the accused going to pick up his key. It is not apparent how this arrangement took place and what officers were in communication with the accused, and what they told him. Indeed, McIlhone himself was unable to explain how it came to be that he was the one requested to return the key, or by whom.

Neither does he purport to say that he has a verbatim recollection of the statements that were uttered, his notes being extremely brief in this regard. The most he can say is what probably was said. [ 35 ] There is an inference, thus, the defence submits, that there was in fact a quid pro quo : if the accused wished his key back he had to show up to claim it, so as to exert ownership over the property, a central factor in a drug prosecution where possession is a required element of the offence.

The fact that the key was returned to him, not in a controlled environment like a police station where the exchange before an independent police officer could be documented and recorded, but instead was facilitated by an officer who was involved in the investigation to substantiate his guilt, detracts from the supposed innocuous nature of any such interaction. [ 36 ] In

summary, the record is silent as to the events leading up to the accused being requested to meet officer McIlhone to retrieve the penthouse key. When the two met, although the officer correctly recognized the party was a likely accused, he was not cautioned or informed of his right to silence. There was a lack of any steps taken so as to provide an adequate record of the utterances of the defendant and the questions he was asked. The totality of such circumstances should give rise to a reasonable doubt, submits the defence, as to the voluntariness of the statement which the Crown seeks to adduce into evidence.

Analysis [ 37 ] Where voluntariness is issue, as the Supreme Court of Canada noted in R v Oickle , 2000 SCC 38 , a confession will not be admissible if it is made in circumstances that raise a reasonable doubt as to voluntariness. (para. 68). [ 38 ] Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused’s right to silence, the jurisprudence of the Supreme Court has consistently protected the accused from having involuntary confessions introduced into evidence.

If a confession is involuntary for any of these reasons, it is inadmissible. (para. 69) [ 39 ] The confession rule is a contextual one. A court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all the aspects of the rule, as discussed above. (para 71). [ 40 ] Subsequent to Oickle , the Supreme Court stated in R v Singh , 2007 SCC 48 , that on the question of voluntariness, the focus is on the conduct of the police and its effect on the suspect’s ability to exercise his or her free will.

The test is an objective one. Voluntariness therefore mandates an inquiry as to whether or not the accused was denied his or her right to silence. (paras. 36-37) [ 41 ] What then is the context of the accused’s interaction with Officer McIlhone and the statements as to his identification when confirming ownership of the key to the searched premises that yielded incriminating evidence that he provided at the time? Stated

shortly, it is inconceivable that this experienced police officer would not appreciate the significance of ownership of the key and its significant evidentiary value to the central issues of knowledge and control, that is the hallmarks of the possession offence. This is especially important in this instance. To the knowledge of McIlhone, who himself searched the residence, there was evidence of personal use in the condominium unit of persons apart from the accused, including females, and identification documents in his name which contained a different address.

His association with the unit and personal possession of its key is therefore of particular evidentiary value. [ 42 ] The police officer who met the accused thus played a central role in the investigation, having searched the unit personally, and was aware of both the nature of the illegal substances found therein, and that charges were likely. In his words, the party was not merely a suspect but a probable accused. For good reason, he advised him to speak to counsel. [ 43 ] This interaction was not merely administrative, as the Crown seeks to characterize it. Neither was it innocuous or spontaneous or unplanned.

There was no need for it to take place at all, much less in the field, in an uncontrolled manner, where no adequate record was made of it. The accused, or someone on his behalf, could have been told to retrieve the key from the station at the booking desk, and not dealt directly with officers involved in the investigation. This was hardly an administrative procedure like a police officer unconnected in an investigation who shows a victim photographs of a suspect and has played no other role in the underlying investigation itself.

I am unable, with respect, to accept the submission that the investigators like McIlhone, would not appreciate the significance of their interaction with the accused, and particularly the importance of his exerting control and possession of the key to the unit where the drugs were found and others apparently lived. [ 44 ] Significantly, it seems to me, the record is entirely silent as to what circumstances led up to the accused being asked to claim the key in question in the manner that he did, what he was told, by whom, and how this meeting was arranged.

It is not for the court to speculate; it is for the crown to prove the voluntariness of the statements that flowed from this interaction, including adducing evidence as to the circumstances leading up to the giving of the statement. While there is no obligation on the Crown to produce each and every police officer who may have had any contact with the accused prior to the taking of a statement, in the context of the facts in this particular case the omission is significant: see R v Bools , 2016 ONCA 554 at para 5 .

There is simply no evidence as to what the accused was told, by whom and when, giving rise to this statement to a police officer who was involved in his investigation and considered, accurately, that he was going to be charged with drug offences found inside the unit that the key secured. [ 45 ] Barely 24 hours following his abduction and fortuitous rescue, it is obvious the accused was not at all aware of the jeopardy he was in, given at the time of his release from the police station there was no mention at all of the drug investigation.

Conversely, McIlhone advised him of the desirability of speaking to counsel, but only after the key was received and incriminating information as to his identification linking him to the unit that was the subject of the search was received [ 46 ] In all these circumstances, it is readily apparent that the accused did not understand the jeopardy he was in. There was no caution nor anything to put him on guard that he was being asked to exhibit ownership and control of an item of significant evidentiary value. His ability to make an informed and free choice was significantly compromised as a result.

The conversation that took place between the accused and officer McIlhone was one that I find the officer knew, or at least ought to have known, that proceeding without a warning or caution would likely give rise to an unguarded admission or response in relation to claiming ownership of the key. This is, in fact, precisely what happened. [ 47 ] Stated shortly, the accused’s conversation with this police officer took place in circumstances where he was denied a meaningful choice as to whether to speak or remain silent.

I am further satisfied that a person in the accused’s position would not have appreciated the prejudicial impact of their actions: namely, being requested to exhibit and admit ownership of a location where a large amount of drugs were found, shortly before charges were laid against him. [ 48 ] Voluntariness implies an awareness about what is at stake in speaking to persons in authority, or declining to assist them: see R v Worrall , [2002] O.J. 2711 (S.C.J.) at para. 106 , per Watt J as he then was. Such awareness was not present in the circumstances of this case.

Conclusion [ 49 ] In the result, I am far from satisfied that the Crown has proven that the accused’s statements have been proven to be voluntary beyond a reasonable doubt. The identification procedure and statements uttered to officer McIlhone in relation to it by the accused are accordingly inadmissible in evidence in these proceedings.