R. v. Smith, 2012 ONCJ 405

Citation: R. v. Smith , 2012 ONCJ 405 IN THE MATTER OF Christopher’s Law (Sex Offender Registry) 2000 Between Her Majesty The Queen Prosecutor And Mr. David Anthony Smith Defendant Ontario Court of Justice Brampton, Ontario Manno, G. Justice of the Peace Voire Dire Reasons Voire Dire held: November 21, 2011 Judgment rendered: June 20 th , 2012

S. Stackhouse, Provincial Prosecutor R. M. Robinson, Counsel for the Defendant Cases Considered or Referred To: R v. Bryere, 2012 ONCA 329. R v. Suberu, 2009 SCC 33 , [2009] S.C.J. No. 33. R v. Grant, 2009 SCC 32 , [2009] S.C.J. No. 32. R v. Collins, (SCC), [1987] 1 S.C.R. 265. R v. Colquhoun, [2002] O.J. No. 349. R. v. Mills, [2005] O.J. No.5269. R v. H (2003), 174 C.C.C. (3d) Man. C.A. R v. Lee, 2007 ABCA 337 , [2007] A.J. No. 1183 (Alta. C.A.). R v. Evans (1991), (SCC), 63 C.C.C. (3d) 289 (S.C.C.). R. v. Grafe (1987), (ON CA), 36 C.C.C. (3d) 267 (Ont. C.A.) R v. Mahmood, 2011 ONCA 693 , [2011] O.J.

No. 4943 (C.A.). R v. Harris (2007), 2007 ONCA 574 , 87 O.R. (3d) 214. R v. Kutynec (1992), (ON CA), 70 C.C.C. (3d) 289 (Ont. C.A.). Statutes, Regulations and Rules Cited: Provincial Offences Act of Ontario R.S.O, 1990 as amended. Christopher’s Law (Sex OffenderRegistry), 2000 Other Publications Referred To News Ontario Website – news.ontario.ca/MCSCS/en/2011/03/Ontario-updates-christophers-law.html. Charge:

1 . David Anthony Smith (the Defendant) is charged on a

Part III Information 3051-90 with two charges. The Charges are that on or about October 15, 2009, as a convicted Offender under Christopher’s Law (Sex Offender Registry) 2000 , did Fail to Comply with the terms of that Registration namely by not reporting his Registered address within 15 days of changing that address and secondly by providing false information to a Peel Regional Police officer under Section 11(1). Mr. Smith’s twin brother was also charged with identical offences on the same date and those charges have been dealt with in a separate court. Background 2 . On November 22, 1999 Mr.

Smith (the Defendant) and his twin brother Dean Smith were convicted of sexual offences and received a period of incarceration and three years probation. 3 . On April 23, 2001 the Sex Offender Registry was enacted resulting in the need for the Smith Brothers to be placed on this Registry and abide by the lifetime reporting conditions of the Registry. 4 . On Saturday, October 17, 2009, Peel officers provide information to P.C.

Hand that both Smith brothers may have been living in different rooms at a Super 8 Motel in Mississauga contrary to their registered address of […] S[…] Way, Brampton where their parents also reside. 5 . On October 20, 2009 both Smith twins attended a Peel Regional Police reporting centre to fulfill their annual reporting requirement as they had done for the previous 9 years. 6 .

Once interviewed at the reporting station, the Defendant and his brother provided statements to the Police confirming that they have been residing at the Mississauga Motel for over 15 days contrary to the requirement they had of reporting any change of address to Police within 15 days of such change. The Police contended that within those statements they had lied about their address and the length of time they had resided at the new address. 7 .

Upon confirmation of the address information in the interview with Police, each brother was separately charged with the same two Offences before this Court and cautioned. 8 . There were a number of court appearances and judicial pre-trials for both Smith brothers. The Court has been told that the trial matter for the Defendant’s unrepresented twin brother Mr. David Smith has been completed at this time. 9 . This particular proceeding commenced (on consent) on November 21, 2011 some two years later with an arraignment of the charges followed by a voire dire.

The voire dire concerns a number of inculpatory utterances made by the Defendant while at the police station during one of his annual visits to report his current address. The Defendant’s Position 10 . The Defendant requested the Court to consider the following orders: (

a) that an order be granted permitting short service of the Application Order under 24(2) of the Canadian Charter of Rights and Freedoms ; (

b) An Order abridging the time prescribed for filing the Application;

(

c) An Order dispensing with the requirement of filing a supporting Affidavit; and (

d) An Order excluding utterances made by the Defendant to Peel Officers Brown and Hand on October 20, 2009. 11. In support of proposition (a), (

b) and (

c) above, Counsel argued that the Defendant was late in obtaining Counsel and once they met,the Defendant indicated to Counsel that he had lost his Disclosure but was able to provide the Disclosure that was provided to his twinbrother for Counsel to review. Counsel asserted that the Defendant is facing a significant penalty should he be found guilty of theseCharges which may include a fine of up to $25,000 and up to one year in jail. The Defendant’s unrepresented twin brother was foundguilty of these Offences and was given a custodial sentence in July of 2011.

Additionally, Counsel asked the Court to consider R v.Kutynec (1992), (ON CA), 70 C.C.C. (3d) 289 Ont. C.A. to support the notion that when a detailed Notice ofApplication is before the Court that sets forth the grounds being relied on, the Affidavit could be considered superfluous to needs. 12.

During this Voire Dire, Counsel submitted that once the Defendant entered the police station and was told to enter an interview roomto meet two officers he had not dealt with previously, he would, at the very minimum, considered himself to be detained psychologicallyand did not feel able to walk away or to not reply to the Officer’s questioning. At that early stage, the Defendant should have beencautioned about his rights to silence and rights to Counsel.

Counsel also contended that it was unclear who escorted the Defendant intothe interview room and whether or not any conversations with this unidentified officer might have taken place. 13. Counsel further noted that given that the Officers had prior knowledge of a possible breach in conditions from the outset, thisreporting visit turned into an investigation as opposed to a reporting visit and the police had an obligation to caution the Defendant earlyon before embarking on these questions.

As such Counsel argued that all of the statements including any inculpatory statements shouldnot be relied upon and not voluntary or admissible given the breach in the Defendant’s rights under both 10(

a) and 10(

b) of the Charter.In other words, had the Defendant been given their rights to Counsel at an earlier point in the interview, they would have declinedanswering the questions put to them before obtaining such legal advice. 14. The Defendant directed the Court to consider the principles and the three part test found in R v. Grant specifically stating that theCourt needs to consider (

a) the seriousness of the Charter infringing state conduct; (

b) the impact of the breach on the Charter and theprotected rights of the Accused, and (

c) Society’s interest in adjudication of the case on its merits in the face of this breach. 15. Counsel for the Defendant contended that the Charter breach was serious and that to allow the utterances to stand would send thewrong message to the public, a message that would mean that the ends justify the means. In paragraph 77 of R v. Grant (ibid) the Courtshave ruled that the more serious the incursion on these interests (ie..the right to silence and the individual’s right to Counsel) then thegreater the risk that admission of the evidence would effectively bring the administration of justice into disrepute. 16.

In paragraph 81 or R v. Grant (ibid) though the exclusion of evidence may undermine the truth-seeking function the deliberate andunconstitutional methods used by Peel Regional Police officers in this instance would support such exclusion. 17. In cross-examination of Officer Brown (Officer Hand was not available for the voire dire) Counsel provided some evidence that theDefendant’s cell phone might have been apprehended by the Officers during the interview further lending credence to the propositionthat the Defendant was effectively being detained much before he was charged and was then entitled to his 10(

a) and 10(

b) Charterrights. The Officer on the stand could not recall taking the Defendant’s cell phone but did indicate as a matter of policy, there is a postednotice found outside the interview rooms telling visitors that they must leave their cell phones at the front desk before entering. Position of the Prosecutor 18. The Prosecutor pointed out that the Defendant was required by law to report and register his address with police within the last 11 to12 months from his last reporting date and provide an update with respect to any change in the registered address within 15 days of sucha change. 19.

The Prosecutor alleges that on September 30th, 2009, the Defendant (and his twin brother) stayed at the Super 8 Motel inMississauga but did not report his change of address as required. 20. Furthermore on October 21, 2008, the Defendant had reported to the police that he was staying at […] S[…] W[…] in Bramptonwith his parents.

21 . On October 20 th , 2009 the Defendant told the police he had been staying at the Super8 Motel for approximately 20 days though he had lied about the length of time he had stayed there with his estimate moving from one day to a few weeks to 20 days. 22 . The police admit to having prior information from fellow officers that the Defendant might have moved addresses but they claim they were not reasonably sure that this was in fact the case.

The officers say they conducted the questioning in good faith attempting to gain clarification but did not agree that the Defendant was being detained or required to answer their questions. Only after they had determined that he was in a possible breach did they caution him and advised him to seek Counsel. They claim that the Defendant told the police that he would call Counsel once he left the station and then proceeded against the caution to respond to further questions by apologizing for lying and confirming that he had changed his address and was living with his girlfriend at the Motel address given. 23 .

The Prosecutor reminded the Court that Charter rights under 10(

a) and 10(

b) are only triggered once the Defendant is detained by the police ( see R v. Suberu , paragraph 3-5 ). Furthermore the Prosecutor argued that the police have prerogative rights to conduct preliminary questioning for investigative purposes and that the officers had not formed reasonable and probable grounds for an arrest. Though the police admitted to having a tip that the Defendant was possibly staying at a different address, they claim that piece of information did not rise to the level of forming reasonable and probable grounds and did not form the grounds for an arrest or detention. ( see R v.

Suberu , ibid, para. 28 ). The Prosecutor contends that on this occasion the Defendant knew why he was at the police station and knew the reason for the visit and the questioning. Rights to Counsel were provided at the appropriate juncture and as soon as he was charged and placed under arrest. 24 . The police contended that despite being cautioned twice, the Defendant allegedly declined to call Counsel and continued to provide further statements that were deemed inculpatory.

The Prosecutor also directed the Court to consider that the societal interest in the Sex Offender Registry and its proper functioning would outweigh the potential breach of Charter rights of the individual and the interest in adjudicating this matter with the inclusion of these utterances outweighs any argument in favour of excluding such evidence. 25 . The Prosecutor also directed the Court to consider the three part test found in R v. Grant (supra) and find that the police conduct was not abusive, deliberate or egregious under these circumstances. 26 .

Finally, in their written submissions, the Prosecutor asked the Court to admit ‘breath sample’ results however, this Court has no evidence regarding breath samples nor is there a nexus between such samples and the charges before the Court. This request will be deemed as non-justiciable by this Court. Analysis 27 . With respect to paragraph 10 above and the Orders being sought under (a), (

b) and (

c) of the Defendant’s written submission and absent viva voce submissions by either the Prosecutor or the Defendant the Court has considered the Orders and rules as follows. The Provincial Offences Act operates largely on the principle that substance should govern over form . Under ideal circumstances meeting the required time limits in any submission including Affidavits would be advisable for good reason. In this particular instance due to the passage of time and due to the completeness of the application made by Counsel, and absent objection from the Prosecutor, the Court grants the Orders requested in (a), (

b) and (

c) above. In contrast, in paragraph 10 item (

d) above, namely the admission of the utterances as voluntary remains a source of contention between Prosecutor and Defendant. The balance of our analysis will focus on the analysis of that particular requested Order. 28 .

Section 9 Charter rights have not been invoked by Counsel, those rights specifically entitle everyone to the right not to be arbitrarily detained or imprisoned. Though some aspects of these allegations appear to speak to this

section the Court will not consider

Section 9 to be an issue that requires the Court’s further attention.

Section 10(

a) and 10(

b) provide for the specific rights as follows: “Everyone has the right on arrest or detention to: (

a) To be informed promptly of the reasons therefore, (

b) To retain and instruct Counsel without delay and to be informed of that right.” 29 . For the purpose of this voire dire , it would be useful to review some of the Common Law with respect to compelled statements, what constitutes detention and whether or not Charter violations always result in the exclusion of evidence in each and every case.

30 . Should the Court agree with the Prosecution’s submissions then the matter would proceed to trial without those statements admitted as evidence. In the event that the Court agrees with Counsel’s submissions and a violation of the Defendant’s Charter rights has been found to have occurred, then the Court would be obliged to consider the basket of remedies offered by the Charter under Section 24(2) .

Equally true, is that if the Court moves ahead to a subsequent Trial on these matters, Section 11(1) of the Registry obliges the Court to consider that: Every offender who, without reasonable excuse, fails to comply with this Act or provides false information under this Act is guilty of an offence and on conviction is liable, (

a) for a first offence, to a fine of not more than $25,000 or to imprisonment for a term of not more than one year, or to both; (

b) for a subsequent offence, to a fine of not more than $25,000 or to imprisonment for a term of not more than two years less a day, or to both. 2000, c.1, s 11(1) . These penalties would be applicable in the event of a conviction following either an informed guilty plea or trial where the Defendant is found guilty by the Court employing an R. v. W.D. standard to the evidence and following submissions on sentencing from both Prosecutor and Counsel. 31 .

In one sense, unlike many police investigations subsequent to random roadside stops, when an individual is compelled to report to a police station to either report a traffic accident or as part of Court imposed conditions, the mere asking of questions on those occasions and the answers given are not necessarily Charter infringements. The dividing line is blurred and must be examined on a case-by-case basis taking all of the circumstances into account. When an individual is compelled to appear are they necessarily at risk so as to invoke rights to Counsel?

If the reporting visit deviates from the ‘usual’ or ‘normal’ procedures at such a visit, does the mere change in the interviewing police officers themselves and/or the number of questions or tenor of such questions asked change the jeopardy of the Defendant? (See R v H. and R. v Lee , ibid). What is clear is that once an individual’s jeopardy changes, the police are then obligated to re-assert an individual’s rights to Counsel. ( see R v. Evans , ibid) 32 .

Additionally, the mere act of police questioning does not necessarily amount to a detention even in cases where an individual may feel compelled or obligated to answer such questions. ( see R v. Grafe , supra, pg. 271). 33 . Courts are not uniform in their analysis of Charter violations and with respect to their seriousness. Sometimes a failure to use lawful means to obtain evidence can indicate a blatant disregard for an individual’s Charter rights and render a breach more serious. ( see R v. Harris , supra. 214).

However, at other times, where unconstitutional conduct was a good faith error on the part of police, the availability of the same evidence by lawful means may significantly diminish the seriousness of the breach. ( see R v. Harris , ibid, para. 70 and R v. Mahmood , ibid). 34 . The Court is also compelled to examine what constitutes ‘detention’. Detention is a suspension of one’s liberties or interests by a significant physical or psychological restraint.

The use of ‘significant’ in this definition is designed to give police some leeway to engage members of the public in non-coercive or exploratory questioning without necessarily triggering Charter rights.

Psychological detention is where an individual in complying with a restrictive request or demand or a police officer or other state agent shows on a balance of probabilities that: -compliance with the demand resulted in a significant deprivation of liberty and either, -a legal obligation to comply with the restrictive request or demand, or -that a reasonable person would conclude that because of the authority’s conduct, the Individual had no choice but to comply. 35 . The test is objective.

There must be evidentiary support for a contention that a significant deprivation of liberty and, absent any legal obligation to comply, that it was reasonable for the individual to feel that noncompliance was not an option. The individual/Defendant need not testify regarding his or her perceptions of the encounter. ( see R v. Suberu and R v. Grant , supra). 36 .

When physical restraint is not involved or there is no obligation to comply with police demands, psychological detention is established if a reasonable person in the Defendant’s circumstances would conclude that he or she had been deprived of the liberty of choice by the police. Relevant to this consideration would be the circumstances giving rise to the encounter and how they would be interpreted by the Defendant, the nature of police conduct and particular circumstances or characteristics of the Defendant if and when

relevant. The inquiry should be an appraisal of the entire interaction and not hang on specific words or phrases. Police that are uncertain of their effect on an individual can or may always state in unambiguous terms that there is no obligation to answer the questions and that the subject is free to go. ( see R v. Grant , supra). 37 . What can one say about statements made and the rules of inclusion and exclusion? In a voire dire, statements must be found to be voluntary beyond a reasonable doubt, before they can be admitted.

There is a presumption that exists that statements that are found to be in breach of a Charter right are to be excluded. This is a general presumption and not the rule for each and every case. A Court must examine the seriousness of the police misconduct, the impact on protected rights and the interest in a fair trial based on the merits. The seriousness of the misconduct measures the Court’s balancing between investigative rights of the police and the rights of the public/individuals to be protected from an overly oppressive system of investigation.

Judicial acceptance of minor or inadvertent slips is not as harmful to the justice system as apparent sanctioning of serious misconduct. The impact on a protected right speaks to the fact that absent Counsel, a Defendant is presumed not to be able to make an informed choice about whether to speak, related rights to silence and to protect themselves from making inculpatory statements.

Circumstances indicating minimal impact that could justify departure from the exclusionary rule might include instances where a spontaneous statement is made following a charter breach or a statement that was made even without the Charter breach or a technical deficiency at the early stages where the accused was clearly informed of their choice to speak to police. Finally, interest in fair trial on the merits would involve the reliability of the statement. Someone detained without a right to Counsel may make statements that are based on trying to get out of a situation rather than reflect the truth.

This danger may undercut the argument that an illegally obtained statement is necessary for a trial of the merits. 38 . Interestingly, in Canada and the U.K., Courts have commented on the ‘ Independent Life of Evidence’ when considering the admission or exclusion of inculpatory statements. In Her Majesty’s Advocate v. P. (Scotland) the U.K. Supreme Court was asked to determine whether evidence with an independent life of its own, obtained from an individual without a lawyer, was admissible.

They found that if that evidence could exist without the compelled statement, then that evidence was thought to have a ‘life of its own’. It was deemed admissible on that basis. In Thomson Newspapers Ltd. V. Canada (Director of Investigation and Research) such evidence was referred to as ‘Independent Evidence’ which existed quite independently from those compelled statements.

In the case before this Court it appears evident that had the police acted on the tip from fellow officers and investigated the alleged breach without the interview, they would have arrived at the same conclusion or belief and thereby avoiding the potential Charter breach. 39 . The Court is mindful of the fact that R v. Grant is a case where despite a Charter breach, the interests in having the evidence admitted at trial outweigh the potential prejudicial effects. The Court is also mindful of the importance of Christopher’s Law in our society as well as how and why it arose.

The murder of 11 year old Christopher Stephenson in 1988 by a sex offender caused societal outcry at the time. A subsequent coroner’s inquest in 1993 made a number of recommendations, including having a Registry which was enacted in April of 2001. It was enacted to essentially ensure the safety and security of all persons in Ontario, and gives the police access to information of the whereabouts of sex offenders to maintain community safety. When it came into being, the Registry was believed to be of use to police in solving and preventing crimes of a sexual nature.

The Ontario government reports that the Registry has a 97% compliance rate and is accessed by the police more than 745 times each day, on average. ( see News Ontario link, supra .), The Registry information gathered includes name, birthday, aliases, address, physical description, and identifying marks (such as tattoos or scars). There are currently proposed amendments that the government would like to enact to align the provincial Registry with the National Registry. Specifically, instead of an Offender having to report within 15 days of any change it would change to 7 days.

It might also include Offenders that are convicted outside of Canada and those that are pardoned under the Criminal Records Act . 40 . As well, at first glance, the officers do not appear to mistreat the Defendant or his brother in the course of the interview. There is no evidence to suggest they spent hours interrogating the individuals nor did they totally deny them their rights to Counsel (after a certain point). The question to determine is whether or not the officers were obliged to provide the Defendant his rights at an earlier stage of the interview than they did.

Had the officers either investigated the alleged offence as suggested in paragraph 38 above or simply took the approach of providing the Defendant his cautions at the earliest opportunity during their scheduled visit, the Charter breach discussion would become moot. 41 .

The Prosecutor essentially wishes the Court to consider that this interview was not a detention until the Officers reached a certain point in the questioning that resulted in them having a reasonable and probable ground for charging the Defendant with an Offence and once that point had been reached the Prosecutor submits that the Officers properly cautioned the Defendant twice. Despite that caution, the Defendant continued to make inculpatory statements to the police. 42 .

One might argue that the Police are well within their rights to question an individual and they do not owe a responsibility to the Defendant when they engage in mere questioning. Additionally, this situation does not seem to be an example of the most egregious of circumstances where the public might be outraged at the inordinate use of police power by the state. The evidence does have an independent life of its own and rights to counsel were given when the police charged the individual whereupon his utterances continued and his admission as to having lied to them.

There are many reasons for the statements to be admitted into a trial and have the matter heard on its merits. It could be very easy and justifiable for a Court to reach this conclusion.

43 . However, the Court is still troubled by the timing of the caution in the interview. In other words, the police had interpreted the Defendant’s point of jeopardy to be later in the interview instead of earlier. When the Defendant replied that he was staying at a certain address, the Officers went beyond normal questioning by asking “Are you sure?” and then questioned the Defendant on the identity of his girlfriend. It is difficult to imagine that the Officers at this point had not formed reasonable and probable grounds to arrest.

It is also easy to imagine that once the Defendant felt doubted he was probably under considerable pressure to provide responses. At this point the issue of detention (either psychological or otherwise) was a live issue. The Officers then went further and asked for or awaited his responses, then placed him under arrest at which point he was given his Charter rights. He made further utterances. Were these subsequent utterances reliable and admissible? Once again, the Court has difficulty removing these statements from the context of the whole.

On their own, one might find that proper procedure was being followed and those subsequent statements should be admissible. When combined with the entire interview and context, it is clear to this Court that Mr. Smith felt he was arrested and continued to try to appease the officers under threat of arrest and punishment. He might have felt his cooperation with them and his apology might have called an end to the matter but he was mistaken. It was clearly wrong for the Defendant not to report any address change to police within the prescribed time limit.

It is also wrong that the Police chose to effectively detain the Defendant in order to conduct their investigation without first giving him his rights to Counsel and his right to leave without answering any further questions. To use a euphemism, two wrongs do not make a right . This is the case we have had to consider balancing of rights and responsibilities of the state and society against those of the individual Defendant before the Court. 44 . As well, in the face of the Charter Breach, this Court has considered three options: (

a) whether or not to admit some of the statements post-caution or (

b) whether all of the statements should be admitted, or, (

c) to disallow all of the statements at trial. 45 . For the reasons cited above and in consideration of the submissions and the case law, this Court finds there has been a Charter breach of the Defendant’s 10(

a) and 10(

b) rights under the circumstances and does not find that surgically removing some statements and allowing others, or allowing the entire range of the utterances made to be just given that breach. In other words the interests of proceeding with a trial admitting part or all of these statements would create a greater injustice than the injustice created by allowing those statements to stand in a Trial. 46 . As such, this Court finds that all of the utterances made by the Defendant on October 20, 2009 to the Peel Regional Police are deemed inadmissible in a trial.

Written Reasons released and filed with the Court June 20, 2012. G. Manno