R. v. Walker, 2012 MBPC 10

CITATION: R. v. Walker , 2012 MBPC 10 Date: 20120118 IN THE PROVINCIAL COURT OF MANITOBA IN THE MATTER OF: The Criminal Code of Canada AND IN THE MATTER OF: The Canadian Charter of Rights and Freedoms BETWEEN Her Majesty the Queen ) Vuk Mitrovic, ) for the Crown (Respondent) ) and ) ) ) Brett Charles Albert Walker ) Antonio Cellitti, Accused ) for the Accused (Applicant) ) ) ) Reasons for Decision delivered ) January 18, 2012 ) Guy P.J. DECISION ON VOIR DIRE FACTS [ 1 ] On March 23, 2010 at 12:44 a.m.

Constable Robert was dispatched to attend the area of 15 Hedgestone Crescent in regards to a male carrying a tire iron, running westbound on Hedgestone. The description given of the individual was white, 16 to 17 years, small build, five ten, five eleven, wearing a dark baseball cap, short-sleeved dark T-shirt, jeans, last seen running towards Ashworth. The officer arrived on the scene at 12:54 at the immediate area of 15 Hedgestone. While the officer was northbound on Ashworth, approaching Southglen, he observed two males approximately 16 to 17 years old walking southbound on Ashworth.

This was in the immediate area of 15 Hedgestone. The constable indicated that he spoke to the males due to the time of the night, it was a residential area with not many people walking around and they matched the description. [ 2 ] The officer was in full uniform, he identified himself as Winnipeg Police and asked them general questions, what they were doing and where they were going. The individuals answered his questions but in the officer’s opinion they were clearly nervous and

fidgety. Because of the officer’s opinion that they matched the description, appeared nervous and fidgety, he was of the view they maypossibly be involved – as being one of the males that was running with a tire iron in the area. [3] The time estimate from his arrival on the scene at approximately 1:05 a.m. till observing a black object protruding from theright side of one of the male’s right side jacket pocket was approximately one minute. [4] The officer could not tell what the protruded object was – a knife, a gun or a tire iron. Because he was alone, he requested anadditional unit to attend.

The officer kept a safe distance of approximately six feet as there were two of them. After requesting back-uphe made a cursory search, for officer safety reasons, of the accused Walker as he was the one with a potential weapon protruding fromhis jacket pocket. His pat-down for hard objects revealed a black collapsible baton, ASP, which was in his right jacket pocket – Exhibit“A” for identification. [5] Once he discovered this object the officer verbally arrested the accused for possess prohibited weapon or some similaroffence.

The object was secured and the accused was placed in handcuffs behind his back. [6] The other individual with the accused was given a pat-down for officer safety and nothing was discovered. [7] Approximately a minute later, 1:06, the other police unit arrived and the two constables dealt with both individuals. [8] Constable Robert described his conversation with the two individuals as normal and asking questions of why they were aroundat that time of night. He was in full uniform. The officer indicated as he was alone it was not practical to pull out his notebook and readthe accused his full rights.

It was the officer’s expectation that once the two other officers were on the scene they would handle theactual arrests. [9] The second officer giving relevant evidence to the issues before the Court was Constable Rodeck. Constable Rodeck was withthe unit scouring the area in response to the tire iron call when at 1:05 a.m. Constable Robert voiced that he was with two individuals atAshworth Street and Southglen Boulevard. [10] Officer Rodeck arrived at the scene and was of the view that the accused, Mr. Walker, matched the description of the maledescribed in the call listing.

The suspects were being watched over by Constable Robert and Constable Robert advised them that theaccused was in possession of a black collapsible baton. Constable Rodeck advised the accused he was being detained pending a policeinvestigation, handcuffed and placed in the cruiser car to secure him and search him to see if he had any other weapons. He asked theaccused why he had a collapsible baton in his possession. The accused responded “I have it ‘cause some guys beat me up before.” [11] The accused was searched, for officer safety, prior to placing him in the cruiser car.

This field search or pat-down was for thepurposes of discovering any hard objects and a three-inch collapsible knife was located in his rear right jeans pocket.

The officer placedhis hand in his pocket, felt the knife and pulled it out of his pocket – Exhibit “B”. [12] The officer asked the accused what the knife was for and was informed “it’s for protection”. [13] The accused was informed he was under arrest for weapons charges. [14] Officer Rodeck indicated that the accused was being detained because of the baton being found on his person and, upondetermining the reason for the possession of the baton and the subsequent locating of the knife and the purpose for its possession, heplaced the accused under arrest for weapons offences. [15] Once the accused was secured in the back of the cruiser car he was given his formal notice of arrest, right to counsel, policecaution from his notebook.

The accused declined to contact counsel. [16] The officer indicated from his arrival, briefing by Constable Robert, questions, search and placing in the cruiser car tookapproximately five minutes. [17] The officer indicated that the reason his rights were not read earlier because of the need to secure the accused for officer safetyby searching him and then placing him in the cruiser car, at which time the officer pulled out his notebook and read him his rights. At1:45 a.m. they left the scene and went to the police station.

He was subsequently released and driven home. [18] In cross-examination Constable Rodeck indicated he did not know that the accused had been arrested by Constable Robert.Further, Constable Rodeck indicated the accused’s possession of the baton warranted his detention but his arrest may depend on thereason why he had possession of the baton. [19] The officer testified that if he had known Constable Robert had arrested the accused he would not have asked any questions,searched him, placed him in the cruiser car and given him his formal notice of arrest.

The officer was of the opinion with theinformation that he had this was an investigative detention. ANALYSIS

Section 9 (

a) The first question before the Court is whether or not prior to noticing the black object protruding from the right side of theaccused’s jacket pocket, was the accused being detained? [20] In R. v. Suberu, 2009 SCC 23 , 2009 S.C.C. 23, the Supreme Court stated as follows: However, as this Court held in Mann, not every interaction between the police and members of the public, even for investigativepurposes, constitutes a detention within the meaning of the Charter.

Section 9 of the Charter does not dictate that police abstain from

interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Likewise, not every police encounter, even with a suspect, will trigger an individual’s right to counsel under s. 10(b). As Iacobucci J.aptly observed, “[t]he person who is stopped will in all cases be ‘detained’ in the sense of ‘delayed’, or ‘kept waiting’.

But theconstitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical orpsychological restraint” (para. 19). [21] Constable Robert, in his evidence, said as a result of a dispatch regarding a male carrying a tire iron, he witnessed two malesmatching the general description, in the area in the early morning hours. The officer inquired of them what they were doing and wherethey were going.

Within a minute of his arrival on the scene while in the midst of this conversation he noticed the black objectprotruding from the jacket pocket of the accused. [22] In my view, on an objective assessment of the totality of the circumstances there was no detention. Examining the factors to beconsidered in defining detention as set out in paragraph 44 of R. v. Grant, 2009 SCC 32 , 2009 CarswellOnt 4104 (S.C.C.), therewas no restrictive request or demand, merely general inquiries in light of the dispatch the officer was investigating.

The evidence beforethe Court does not indicate any misconduct on behalf of the officer and we have no evidence of lack of choice with respect to complianceby the accused. In my view, no reasonable person in the circumstances would feel themselves detained. (

b) The second question arises when Constable Robert sees the protruding object and detains the accused – was that detentionarbitrary? [23] Because the officer could not tell what the protruding object was, he kept his distance and summoned back-up and only then didhe make a cursory search for officer safety reasons of the accused who had the protruding object and thereby discovered the collapsiblebaton to be the object. [24] In my view, in light of R. v.

Mann, 2044 CarswellMan 303 (S.C.C.), the officer met the criteria necessary in order to justify thedetention and not to have it found to be arbitrary or unlawful. [25] The officer was investigating an incident involving a male with a tire iron being sighted in the area in the early morning hoursmatching the description of the two individuals just spotted by the officer. Based on this information the officer must have had (and sotestified) a reasonable suspicion based upon reasonable grounds that these individuals may be connected to the reported incident.

Uponseeing the protruding object, detention was necessary to further investigate the reported offence and possible new offence in light of anobjective view of all the circumstances. [26] The detention was neither arbitrary nor unlawful.

Section 8 – Search and Seizure [27] A warrantless search and seizure is prima facie unreasonable and the Crown must show on a balance of probabilities that thesearch was reasonable - R. v. Collins, (SCC), 1987 CarswellBC 94 (S.C.C.). Pursuant to Collins the search will only bereasonable if it is authorized by law, the law itself is reasonable and the manner in which the search was carried out is reasonable.

Baton [28] In the circumstances of this case, once the officer saw the object protruding from his jacket, not knowing what the object was,the officer proceeded to conduct a protective pat-down search of the detained individual for the purposes of officer safety. In thesecircumstances the search was conducted incidental to a lawful investigation detention so it was authorized by a reasonable law and wasconducted in a reasonable manner. Therefore, in my view, there was no breach of s. 8 in the circumstances. Knife [29] Constable Rodeck arrived on the scene in answer to Constable Robert’s request for assistance.

Constable Robert advisedConstable Rodeck that the accused was found in possession of a black collapsible baton and was under arrest. Although there was someconfusion regarding the handcuffing of the accused there was no doubt he was under arrest. Constable Rodeck took possession of theaccused and prior to placing him in the cruiser car conducted a pat-down of the accused, which search led to the discovery of acollapsible knife.

These actions took place in a relatively short period of time and on the basis of the information possessed by ConstableRodeck, in my view, he was entitled to conduct a brief search for officer safety before placing the accused in the cruiser car.

Section 7 [30] The Crown argues the R. v. Singh, 2007 SCC 48 , 2007 S.C.C. 48, decision answers the facts in this case. I believeSingh is distinguishable - in that case there was no question the accused was advised of his rights. The issue was the exercise of thoserights. [31] In the circumstances of this case the accused was never advised of his rights upon arrest prior to questions being asked of him.An informed exercise of choice (whether to respond to the questions or not) cannot in any meaningful sense be said to be the product ofan exercise of free will.

Therefore concerns raised in Singh such as “respect for the individual’s freedom of will, the need for lawenforcement officers themselves to obey the law, and the overall fairness of the criminal justice system” are present here. [32] The breaching of s. 7 of the Charter becomes subsumed in light of any ruling with respect to s. 10(

b) rights breach and theapplication of Grant.

Section 10(

b) Charter [33] The Crown concedes that the comments made by the accused were obtained in violation of the s. 10(

b) right to counsel.

Section 24(2) [ 34 ] In R. v. Grant the majority of the Court reformulated the test to be applied on application to exclude evidence under s. 24(2) of the Charter . The Court stated the test at paragraph 71 as follows: ...whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2) , viewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter - protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [ 35 ] With respect to the verbal comments made by the accused in absence of Charter warning, the following factors are to be considered: • The preservation of public confidence in the justice system requires that the police adhere to the Charter in obtaining statements from a detained person.

The impression that courts condone serious police misconduct is more harmful to the repute of the justice system than the acceptance of minor or inadvertent slips; • The failure to advise of the right to counsel undermines the detainee’s right to make a meaningful and informed choice whether to speak and the related right to silence. These rights protect the individual’s interest in liberty and autonomy. Violation of these fundamental rights tends to militate in favour of excluding the statement.

Subject to limited exceptions, the analysis under this line of inquiry supports the general exclusion of statements taken in breach of the Charter ; and • In assessing the public interest in having cases adjudicated on their merits, statements taken in contravention of the Charter may lack reliability. Individuals detained by the police and without the advice of counsel, a suspect may make statements that are based more on misconceived idea of how to get out of his predicament than on the truth.

This danger undercuts the argument that an illegally obtained statement is necessary for a trial on its merits. [ 36 ] As a result of the Grant decision it is fair to say there is no automatic exclusion as a result of a s. 10(

b) breach. The approach of Grant indicates a more contextual one considering all the circumstances. Although the police questioning in these circumstances was not egregious or serious misconduct, the second branch of the Grant test is more seriously breached. The accused, it was agreed by both officers, was being detained for investigation. At that point there was no need once officer safety had been established to hasten to questioning the accused prior to advising him of his s. 10(

b) rights. The comments by the accused were in response to direct questions by the officer and are very material issues to the reasons for his being detained. The questions went to the heart of possible charges that he would be facing. Particularly in regard to the second question asked by the officer, the officer just found the knife and knew he had not been given his rights with respect to a possible new offence.

The officer could not, therefore, claim that he did not know the accused had not been arrested and given any rights in respect to this offence. [ 37 ] The comments were not spontaneous and perhaps would not have been made if there had been no Charter breach. This breach favours exclusion. [ 38 ] Even the balancing process involved in the third stage of Grant , in my view, would not justify their admission despite their possible reliability. [ 39 ] The comments made are excluded. CONCLUSION [ 40 ] The Charter application is only successful in regard to the s. 10(

b) Charter breach which will result in the comments being excluded. All other evidence survives Charter scrutiny. P.J.