R. v. Whynder, 2019 NSSC 156

SUPREME COURT OF Nova Scotia Citation: R. v. Whynder , 2019 NSSC 156 Date: 20190513 Docket: CRH470463 Registry: Halifax Between: Her Majesty the Queen v. Ricardo Jerrell Whynder DECISION - VOIR DIRE NO. 1 Restriction on Publication: ss. 486.5(1) and 648(1) cc Judge: The Honourable Justice Michael J. Wood Heard: April 1, 2, 3, 4, 5, 8, 9, 10, 12, and 16, 2019, in Halifax, Nova Scotia Counsel: Rick Woodburn and Sean McCarroll, for the Crown Trevor McGuigan and Colin Coady, for the Accused Order restricting publication — victims and witnesses 486.5

(1) Unless an order is made under

section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. Restriction on publication 648

(1) After permission to separate is given to members of a jury under subsection 647(1), no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict. By the Court:

[1] Ricardo Whynder was arrested by RCMP officers in Surrey, British Columbia, on March 10, 2017, at approximately 4:00p.m.. He was charged with first degree murder in the death of Matthew Sudds on March 11, 2017. Mr. Sudds had been killed in Halifaxin October 2013. Mr. Whynder was kept in detention at the RCMP detachment until his return to Nova Scotia on the evening of Sunday,March 12, 2017. [2] For most of his time in custody, Mr. Whynder was subject to an undercover police operation which involved an experiencedundercover RCMP officer being placed in Mr.

Whynder’s cell, in circumstances where he was led to believe that the officer was underarrest in relation to an ongoing criminal investigation. [3] In addition to the undercover operation, police officers from Halifax interviewed Mr. Whynder on the evening of March 10th , and the morning of March 11th. [4] From April 1 to 12, 2019, I conducted an admissibility voir dire with respect to evidence proposed to be introduced by theCrown at Mr. Whynder’s upcoming trial. It included the statements made by Mr. Whynder to the undercover cellmate. Defence counselargued that Mr.

Whynder’s rights under s. 7 of the Canadian Charter of Rights and Freedoms, were violated and this evidence should beexcluded under s. 24(2) of the Charter. On April 16, 2019, I advised counsel that I would allow the defence application and exclude Mr.Whynder’s statements to the undercover officer. I indicated that I would provide detailed reasons for my decision, and these are thosereasons. Undercover Police Operations and

Section 7 [5]

Section 7 of the Charter encompasses the constitutional right to remain silent. [6] When a person chooses not to speak with the police, the court will examine very closely any attempt to obtain incriminatingstatements through the use of undercover officers. For example in R. v. Hebert, (SCC), [1990] 2 S.C.R. 151, the Courtmade the following comments: 123 The scope of the right to silence must be defined broadly enough to preserve for the detained person the right to choose whetherto speak to the authorities or to remain silent, notwithstanding the fact that he or she is in the superior power of the state.

On this view,the scope of the right must extend to exclude tricks which would effectively deprive the suspect of this choice. To permit the authoritiesto trick the suspect into making a confession to them after he or she has exercised the right of conferring with counsel and declined tomake a statement is to permit the authorities to do indirectly what the Charter does not permit them to do directly. This cannot be inaccordance with the purpose of the Charter. [7] In that case the accused had been arrested and declined to give a statement to police.

He was subsequently placed in a cell witha police officer posing as a suspect under arrest. In conversations with the officer, the accused made incriminating statements. The courtconcluded that the accused’s s. 7 rights were violated and his statements were inadmissible. The court made it clear that in order toexclude the evidence there must be some nexus between the conduct of the undercover officer and the resulting statements.

The courtdescribed the issue as follows: 133 Fourth, a distinction must be made between the use of undercover agents to observe the suspect and the use of undercover agentsto actively elicit information in violation of the suspect’s choice to remain silent. When the police use subterfuge to interrogate anaccused after he has advised them that he does not wish to speak to them, they are improperly eliciting information that they were unableto obtain by respecting the suspect’s constitutional right to silence: the suspect’s rights are breached, because he has been deprived of hischoice.

However, in the absence of eliciting behaviour on the part of the police, there is no violation of the accused’s right to choosewhether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have acceptedthe risk that the recipient may inform the police. [8] Identifying conduct which amounts to improper elicitation of information, has become the focus of the s. 7 litigation arisingout of undercover cellmate operations. [9] A year after Hebert the Supreme Court again considered the issue in R. v. Broyles, (SCC), [1991] 3 S.C.R.595.

In that case the police did not use an undercover officer, but rather a friend of the accused, who visited him in custody at the requestof the police and obtained damaging admissions. The court said the questioning of the accused was the functional equivalent of aninterrogation and excluded the evidence. In reaching this conclusion the court provided an expanded description of the analysis to beundertaken with respect to the police conduct and whether it violated s. 7 of the Charter.

That approach was as follows: 37 In my view, it is difficult to give a short and precise meaning of elicitation but rather one should look to a series of factors todecide the issue. These factors test the relationship between the state agent and the accused so as to answer this question: considering allthe circumstances of the exchange between the accused and the state agent, is there a causal link between the conduct of the state agentand the making of the statement by the accused? For convenience, I arrange these factors into two groups.

This list of factors is notexhaustive, nor will the answer to any one question necessarily be dispositive. 38 The first set of factors concerns the nature of the exchange between the accused and the state agent. Did the state agent activelyseek out information such that the exchange could be characterized as akin to an interrogation, or did he or she conduct his or her part ofthe conversation as someone in the role the accused believed the informer to be playing would ordinarily have done?

The focus shouldnot be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of aninterrogation. 39 The second set of factors concerns the nature of the relationship between the state agent and the accused. Did the state agentexploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the state agent andthe accused? Was the accused obligated or vulnerable to the state agent?

Did the state agent manipulate the accused to bring about amental state in which the accused was more likely to talk?

40 In considering whether the statement in question was elicited, evidence of the instructions given to the state agent for the conduct of the conversation may be important. As McLachlin J. noted in Hebert , supra, evidence that the agent was instructed not to initiate the conversation nor to ask leading questions will tend to refute the allegation that the resulting statement was obtained in violation of s. 7. I would add, however, that in my opinion evidence that the state agent was instructed not to elicit information will not end the inquiry.

The authorities may not take the benefit of the actions of their agent which exceed his or her instructions. To hold otherwise would be to ignore the fact that the primary emphasis of the right to silence in s. 7 is on the use of the coercive power of the state against the suspect. The authorities ought not to be able to shield themselves behind the subtleties of their relationship with the informer. It is the authorities who are in a position to control the actions of their informer; if they fail to do so, they ought not to benefit from that failure at the expense of the accused. See United States v.

Henry , 447 U.S. 264 at 271-72, 65 L. Ed. 2d 115, 100 S. Ct. 2183 (1980). [ 10 ] This passage indicates the court must determine whether the conduct of the state agent caused the accused to make the statement in question. When the agent initiates the conversation and asks leading questions there may be a violation of s. 7. [ 11 ] In R. v. Liew , [1991] 3 S.C.R. 227 , the Supreme Court once again considered the interaction between an undercover cellmate operation and s. 7 of the Charter . In that case the conversation lasted a few minutes.

The sole issue was whether there was active elicitation on the part of the officer. The court noted that the suspect initiated the exchange and the officer did nothing other than pick up the flow and content of the conversation. The court again focused on whether the officer caused the statement to be made and described its conclusion on this point as follows: 51 In accordance with Broyles , the undercover officer conducted his part of the conversation as someone in the role the appellant believed the officer to be playing would ordinarily have done.

In the circumstances of this case the conduct of the officer was not the functional equivalent of an interrogation. The point is not that role-appropriateness by itself sanitizes the exchange, but that the undercover officer did not direct the conversation in any manner that prompted, coaxed or cajoled the appellant to respond. The appellant's response was not "caused" by the officer's statement in the sense that the officer's statement deprived the appellant of his choice whether to speak.

In responding to the officer's statement, the appellant exercised his freedom to do so. [ 12 ] The accused had argued that the undercover officer had established a close relationship with him and that this should be taken into account. The Supreme Court responded to his argument as follows: 52 There is nothing in evidence to support the proposition that there was a relationship of trust between the undercover officer and the appellant. Nor was the appellant obligated or vulnerable to the undercover officer.

Nor can it be said that the undercover officer manipulated the appellant to bring about a mental state in which the appellant was more likely to talk. … 54 The relationship of "co-accused" is not in and of itself sufficient to meet the guidelines set out in Broyles .

This is not a case where the undercover officer cultivated a sustained relationship with the accused over time, such that the accused may be said to have spoken to the undercover officer in the reasonable expectation that his communications would not wind up in the hands of the police. 55 On the contrary, the facts indicate that the appellant and the officer did not know each other prior to the arrests. In such circumstances, it is difficult, if not impossible, to suggest that the state agent exploited any special characteristics of his relationship with the appellant to extract the statement.

In fact, to speak of a "relationship" at all seems to exaggerate the circumstances. 56 The appellant cannot complain that his statements wound up in the hands of the police any more than he could complain had the officer been a concurrently arrested co-accused who subsequently told the police what the appellant said. The appellant chose to speak. He was free to do that. [ 13 ] A good example of the application of the principles from Hebert , Broyles and Liew , is R. v. Deboo , 2015 BCSC 69 , where a police officer posed as a cellmate with an accused who was charged with first degree murder.

The parties spent 12 hours together and had discussions about a variety of things. Sometimes the undercover officer asked clarifying questions and occasionally he intervened to shift the discussion in a subtle, but discernable, manner towards the charges faced by Mr. Deboo. The court’s rationale for excluding Mr. Deboo’s statements was as follows: 63 In my view, considered holistically and in context, Mr. Deboo's jail cell conversation with Cst. A amounted to the functional equivalent of a subtle interrogation. Although the atmosphere was congenial and questioning gentle, on several occasions Cst.

A actively encouraged Mr. Deboo to speak with him about the murder charge. When he did so, he often met with success. 64 The success of this approach is unsurprising. Interrogators often use honey, not vinegar, in pursuit of the truth. In the context of a formal police interview, such persuasion is both fair and effective. It does not breach a detainee's Charter right to silence because the detainee acts as a free agent making an informed choice when deciding whether or not to respond. When the context changes, however, the permissible parameters of police persuasion also change. 65 As in Hebert , Mr.

Deboo's statement to Cst. A was not a reversal of his decision to remain silent vis-à-vis the authorities. Rather, it was its negation by means of a trick. His speech was not volunteered without regard to the recipient's identity. It was directed to a fellow prisoner, which, as McLachlin J. remarked in Hebert , is a quite different matter. It was also encouraged in circumstances of subterfuge that made Mr. Deboo more likely to talk. 66 There is a causal link between Cst. A's conduct and Mr. Deboo's statements. For example, although it was Mr. Deboo who first mentioned the murder charge, Cst.

A sometimes redirected conversation back to particular aspects of that topic. This occurred early on when Mr. Deboo was describing his use of painkillers and Cst. A responded by asking how he was arrested. It happened again when Mr. Deboo was speaking about being moved to Maple Ridge and Cst. A responded by expressing the hope that "it [the killing] was quick for him [Mr. Howson]". 67 Some of Cst. A's clarifying questions were also causally linked to Mr. Deboo's statements. Although I accept that they were role-

appropriate, the exchange is not sanitized for this reason alone: Liew , para. 51. The central issue is whether, in all of the circumstances, the questions "prompted, coaxed or cajoled" a response from Mr. Deboo. In several instances, I find that they did.

These include his responses to the questions: "So it begs the question 'why me'?"; "Yeah but why would they pick you, though?"; "But why do a day for something you didn't do, you know what I mean?"; and "Was that a fuckin shocker?". [ 14 ] As the Supreme Court has indicated, it is important to consider all of the circumstances surrounding the interaction between the undercover officer and the accused in deciding whether any s. 7 rights have been violated. A careful examination of the discussions and the extent to which the officer might be moving the conversation in a particular direction, is important.

One must also consider the circumstances of the accused’s detention and how this may affect his willingness to engage in discussions with the officer. An example of how these factors may come into play is found in R. v. Skinner , 2017 ONSC 2115 , where the court described the situation created by the state in the following terms: 40 As for factors concerning the nature of the exchange between the accused and the state agents: … • In my view, the state-determined circumstances of Mr Skinner's confinement and proximity with U.C.H. and U.C.B. influenced his choice to speak to the two undercover officers.

In that regard, I was not guided by the mere fact of confinement. To state the obvious, every person who is detained and/or arrested will experience feelings of isolation from familiar and trusted family members, friends and confidantes. However, in the particular circumstances of this case, I thought Mr Skinner was placed in a situation where those feelings, and a corresponding impulse to speak to those not perceived as being associated with the authorities, would have been reinforced and elevated.

The circumstances combining to produce that result included the following: • Mr Skinner had just completed a period of incarceration, (and therefore isolation from any social support in the community), in a prison facility that was geographically distant from where he previously had been spending his time. • Anticipating release from custody and freedom, Mr Skinner suddenly was confronted with the reality of ongoing detention and probable continued custody on a charge of second degree murder. • He was then transported to Stratford, a community where he apparently had not resided for some time, and was not expecting to go.

As he later indicated during the course of candid discussion with the two undercover officers, he worried that no one but his lawyer knew where he was. • While travelling to Stratford, Mr Skinner had spent, with the exception of two relatively brief telephone conversations with defence lawyers, over five hours in a confined space with three police detectives, in circumstances where he was made aware of the fact that everything said was being recorded.

Upon placement in a Stratford holding cell, he was told that certain recording devices he knew about were being turned off. • In contrast to other situations of incarceration, (such as a jail or detention centre ranges offering access to telephones and television), the holding cell arrangement in Stratford offered no means of external communication, and no other diversions and distractions to help pass time.

Moreover, no one but police officers and other detainees visited or attended the relevant cellblock area during Mr Skinner's time there. • While not having to share a holding cell, Mr Skinner nevertheless was situated between an undercover officer in each adjacent cell.

In the result, Mr Skinner could not physically retreat very far from conversations with or between the undercover officers, or distance himself more than 6-12 feet from either undercover officer, (depending on where that particular officer was located within that officer's own holding cell), and moving away from one undercover officer would simply bring Mr Skinner into closer proximity with the other. Mr Skinner then was exposed simultaneously to the conversational efforts of more than one undercover officer.

Indeed, the authorities placed Mr Skinner literally in the middle of any conversation between the two undercover officers, in a cellblock area described by U.C.H. as being otherwise "extraordinarily quiet". In my view, all of this naturally would have made it much more awkward and difficult for Mr Skinner not to join in any such conversation. • Mr Skinner had not yet been to court, where he might have encountered counsel, family or other supporters. He also had been informed that he had no prospect of making his first court appearance, in bail court, until the following day.

In the intervening period, Mr Skinner would have no familial contact, no right to visitors, and no right to have his lawyer present during police questioning.

In short, in the immediate wake of unexpectedly being arrested and charged with second degree murder, (a situation that inherently would be very stressful), and apart from his brief telephone conversations with lawyers, (whom he had not seen), Mr Skinner had been and would continue to be figuratively "on his own" vis-à-vis the authorities for a considerable period of time, generally confined to a relatively small space with nothing to occupy his attention but his own thoughts and possible conversation with those in adjacent cells.

Apart from the police, U.C.H. and U.C.B., (who already were exhibiting friendship vis-à-vis each other), were and would be the only available points of human contact available to Mr Skinner. … [ 15 ] It is with all of these comments in mind, that I will consider the undercover operation put in place in order to obtain evidence from Mr. Whynder. The Undercover Operation [ 16 ] Matthew Sudds was murdered in October 2013. In May 2014 Mr. Whynder was taken into custody by Halifax Regional Police and questioned.

He invoked his right to remain silent and did not provide any significant information to police in relation to the murder investigation. [ 17 ] On March 10, 2017, Halifax Police obtained a warrant for Mr. Whynder’s arrest on the charge of first degree murder of Mr.

Sudds. He was located in Surrey, British Columbia, and arrangements were made to travel there to interview him following his arrest by the RCMP. [ 18 ] The lead investigator, Sgt. Kurt Walsh, knew it was unlikely that Mr. Whynder would give any information to the police in an interview and therefore he requested an undercover operation where an officer would be placed in his cell. [ 19 ] The undercover operation was implemented by the Surrey RCMP. An experienced operator, Cst. M, was identified and an appropriate scenario was developed. Cst.

M was posing as an seasoned criminal involved in drug importation and trafficking. He was provided with no information concerning the charges against Mr. Whynder or the investigation, other than they involved a violent offence. Cst. M’s training and instructions directed him to act as a “active listening post” and to create an environment where Mr. Whynder would feel comfortable discussing his knowledge and/or involvement, if any, in relation to the investigation. The cell in which Mr. Whynder and Cst. M were to be placed, was set up with audio and video recording. [ 20 ] Cst. M was in the holding cell when Mr.

Whynder was placed there at approximately 5:00 p.m. on Friday, March 10, 2017. The operation lasted until Cst. M left the cell at approximately 2:00 p.m. on Sunday, March 12, 2017. Both Mr. Whynder and Cst. M were absent from the cell for various periods. For example, Mr. Whynder was taken out for police interviews on March 10 th from 7:54 p.m. to 11:06 p.m. and March 11 th from 8:54 a.m. to 11:27 a.m. [ 21 ] The cell had built in beds along two of the walls and an open toilet/sink unit. There was very little room to move around. It was brightly lit at all times. [ 22 ] When Mr.

Whynder first arrived in the cell he indicated that he did not know how long he was going to be detained before being sent to Nova Scotia. He said the sitting and waiting was going to “suck” and that he wanted to be able to call his family. Cst. M responded by indicating that on the “pre-trial side” there was more room and phone calls would be permitted. The uncertainty of how long he would be in the holding cell, the inability to speak to family members and the lack of activities to pass the time, were topics that Mr.

Whynder came back to frequently. [ 23 ] When he was interviewed by Halifax Police on Saturday morning, Mr. Whynder asked if he could make a phone call to his loved ones, including his mother, and was told they would get back to him. After the interview and his return to the cell, Mr. Whynder asked several times for the opportunity to make a phone call. Eventually, he was able to call his mother around 3:30 p.m. [ 24 ] At approximately 1:00 p.m. on Saturday, Mr. Whynder told Cst.

M that he wished they had playing cards to keep themselves occupied because they were going to be sitting in that cell until Monday or Tuesday. Later he said he did not want to be sitting in the cell for six days because he would go crazy. After the phone call with his mother, Mr. Whynder said the following: Fucking no books, no fucking cards, just the walls and your thoughts. [ 25 ] He then asked the guards for books, cards, paper, pencils or “something” and is told “no”. [ 26 ] Around 5:15 p.m. Mr. Whynder said to Cst.

M: I am happy they double bunked me with you man cause if I (unintelligible) by myself, my mind would be just fucking racing and racing like… fucking seven days, six days sitting here. [ 27 ] Less than an hour later Mr. Whynder again asked the guards for books, a newspaper or a crossword puzzle and was told that he could not have any of these. [ 28 ] As in the Skinner case, the nature and extent of the confinement is relevant. The evidence presented on the voir dire established the following: • Mr.

Whynder was arrested while walking in public and placed in a holding cell with a stranger he understood to be an experienced drug smuggler who was found with a handgun and a large amount of cash. • The cell was constantly lit and relatively small. There was no way to be physically separate from the cellmate. • Mr. Whynder was housed with Cst. M for almost 48 hours. The only exception was when Mr. Whynder was removed for police interrogation on Friday evening and Saturday morning, and when he spoke to his mother by telephone late Saturday afternoon. Cst.

M was also taken out of the cell from 6:30 to 8:15 p.m. on Saturday. There was over 20 hours of recorded conversation between Mr. Whynder and Cst. M. • Mr. Whynder wanted activities to pass the time, including books, newspapers, cards and writing materials. Despite multiple requests over Saturday afternoon and evening, none of this was provided. • Mr. Whynder did not have a real sense of how long he was going to be detained in the cell, but felt it would likely be a number of days. He told Cst.

M that being in the cell by himself without anything to do, would make him crazy. • After 24 hours in the cell together Mr. Whynder told Cst. M that he was glad that he had been double bunked because otherwise his mind would be racing. [ 29 ] It is clear that the scenario set up by the undercover operators and the nature and extent of the double bunking custodial arrangement, made Mr. Whynder more susceptible to engaging in conversation with Cst. M. This must be borne in mind as we examine the nature of the discussions between them. [ 30 ] When Mr. Whynder was placed in the cell with Cst.

M around 5:00 p.m. on March 10 th , they immediately engaged in

conversation about why each has been arrested. Mr. Whynder said that he had been charged with three murders. He also said that he hoped his “co-accused” was not the reason he had been arrested. [ 31 ] During the first hour there were a number of discussions about having to sit in the holding cell without contact with Mr. Whynder’s family. [ 32 ] Mr. Whynder was removed from the cell at 6:35 p.m. and returns at 11:05 p.m. During this absence, Mr. Whynder had a telephone discussion with a lawyer and was interviewed by Halifax police officers. [ 33 ] Upon his return, Mr. Whynder woke up Cst.

M and began talking about the police interview. He mentioned that the police showed him a number of videos of people saying what they thought or heard. Cst. M then began asking about why people might be giving these statements to the police, which was not a topic raised by Mr. Whynder. For example, at 11:20 p.m. the following exchange took place: Ricardo WHYNDER: Mhmm. Plus there’s like videotapes with he said, she said, you know? People saying oh I heard or I think. Just he said, she said but still, right? No one wants to be mentioned on fucking three homicides of he said, she said, you know? Cst.

M: These fucking people got beef with you or they just fucking… Ricardo WHYNDER: Those people that are on tape? Cst. M: Yeah. [ 34 ] After Mr. Whynder said the evidence shown to him by the police was the same as had been presented to him in the 2014 interview, Cst. M started suggesting that the police must have new evidence and asked Mr. Whynder what that might be. For example, at 11:33 p.m. the following discussion took place: Cst. M: Maybe they’re just warming you up again to fucking do, do shit tomorrow. Ricardo WHYNDER: Say again. Cst. M: Maybe they’re just warming you up today to fucking do shit tomorrow.

Ricardo WHYNDER: Hmm. ‘Cause when I was coming down, he did say to me, you never know we’re gonna come back to do stuff tomorrow. Cst. M: (Laughs) so then the big fucking worry is, is there new stuff to come up? [ 35 ] After Mr. Whynder mentioned how long it might be before he is transferred to Halifax, Cst. M asked why the police want to take him to Halifax so badly. For example, he said: “Why the fuck to they wanna bring you back so bad?” “If they came all the way out here they’re gonna, they’re gonna bring you back with the police.

But like, so they bring you back why … why would they bring you back to let you go?” “Like if you’re as bad of a dude as fucking they say, say you are, why would they want you back in town?” [ 36 ] Cst. M suggested the reason might be that the police believe people will start talking if he’s back in town. Mr. Whynder responded by saying that all the police have is a lot of “he said - she said” which wouldn’t be enough to convict anyone. Cst. M agreed and said the police needed a witness, a murder weapon or evidence that would put him at the scene. This prompted Mr.

Whynder to say that the police do not have any of that evidence. [ 37 ] Through the late evening of Friday, March 10 th , Cst. M raised questions about evidence police might have, which would have led them to arrest Mr. Whynder again. He mentioned the possibility of a witness, a murder weapon, that the subsequent incident where Mr. Whynder was shot could have been retribution for Mr. Sudd’s killing and whether the co-accused might be talking to police. [ 38 ] After a long discussion about the killing of Mr. Whynder’s cousin and the incident where Mr. Whynder was shot, Cst.

M brought the conversation back to the evidence which police might have against Mr. Whynder. Shortly after mid-night the following exchange occurred: Cst. M: But then that coms back to you, do you know what I mean? Fucking they ain’t doing shit on that ‘cause they don’t have you so what changed on who they got fucking (unintelligible)? Ricardo WHYNDER: That’s the only think that… that’s… (unintelligible) that’s in Toronto on other charges. He can’t do the fucking time looking at the walls cracking under pressure, right? Cst. M: Yeah.

Ricardo WHYNDER: (Unintelligible) even if he does try to run it to the police and say I did somethin’. He’s not that credible. He has a hefty, hefty criminal record. Pure shootings. He’s up on shootings right now, gun charges, livin’ off the avails so a good lawyer… Cst. M: Yeah. Ricardo WHYNDER: … would poke holes (unintelligible)…

Cst. M: Yeah. Ricardo WHYNDER: … (unintelligible) you’re up on like twenty charges. You could be saying that pointing your finger at him just to get off these charges. Cst. M: Yeah. Ricardo WHYNDER: You know what I mean? So if it’s him, he’s… he’s not really that credible. Cst. M: The only way it’s credible is if he fucking gives up something like hard evidence, do you know what I mean like… Ricardo WHYNDER: Yeah. Cst. M: … you can find the fucking gun here, you can find the knife here, right? [ 39 ] Later, after discussing their relationships with women, Mr.

Whynder talked about when he might be taken to Halifax and how long he could be in custody prior to trial. Cst. M directed the conversation back to the question of what evidence the police may have. He suggested that perhaps the co-accused was talking and asked whether the police could prove that the co-accused was at the scene. He also asked whether the body had been recovered. This prompted Mr. Whynder to discuss the lack of evidence connecting him to the murder. [ 40 ] By the end of Friday evening, Cst. M. had asked Mr.

Whynder the following: • Whether the co-accused had ratted on him; • Whether the police could prove that the co-accused was at the scene of the murder; • Whether the people who gave statements to the police had a beef with him; • Whether the people who gave statements to the police were saying that he committed the murder; • Did the police have a body; • Was Mr. Whynder’s shooting retribution for the earlier murder; • Why had the police arrested him again, three years after his initial arrest. Cst.

M suggested it might be due to a number of reasons, including: o Something had changed because new information was going to come up; o A witness had come forward; o There was hard evidence, such as a murder weapon; and o The police hoped to get people talking in Halifax. [ 41 ] As a result of these questions by Cst. M, Mr. Whynder was led to discuss a number of issues, including the lack of evidence in the possession of the police. This conversation would also have cemented the perception that Cst. M, with his extensive experience, was in a position to offer advice on the best strategy for Mr.

Whynder to use in addressing the charges. [ 42 ] The approach taken by Cst. M was to move the discussion to topics by raising them in the first instance, or returning to the subject at a later point. Where a general discussion was occurring, he would sometimes ask for more details and offer hypothetical examples that would invite responses from Mr. Whynder. [ 43 ] On Saturday, March 11, following his return to the cell after his police interview, Mr. Whynder reports that the police played a recording of a Crime Stoppers call by his co-accused which suggested that Mr.

Whynder was the driver of the vehicle involved in the murder. Between 12:47 and 12:52 p.m. the discussion included the following comments by Cst. M: You were the driver? So is this bullshit or what? Well that’s just it. He (unintelligible) so you’re the driver. And freaking what do they got? You were driving, right? Big fucking deal, right? Do they know what you’re driving? Well then what matters to you is if that’s fucking bullshit or not, you know what I mean? If it’s fucking bullshit then he can say what he wants.

But if he’s fucking telling the fucking… if he’s telling the straight goods… at least part of the straight goods, you know what I mean? [ 44 ] Mr. Whynder responded by again talking about the police lack of evidence connecting him to the murder. He then complained about waiting to be transferred to Halifax. Cst. M brought the conversation back to the co-accused and the fact that he was implicating

himself by saying that he was at the scene as well. This led Mr. Whynder to say there was no evidence placing him at the scene. [ 45 ] Mr. Whynder complained that the police were making him look bad by issuing a press release announcing his arrest. Cst. M’s response was: There’s a difference though man. In my… in my mind there’s a difference. There’s people who fucking do shit for business and there’s people who do shit for fucking other reasons you know what I mean? I … I look at it totally different if it’s fucking business. If you’re going out fucking I don’t know … doing shit.

When it’s business, business is business. [ 46 ] Clearly, this is an attempt to have Mr. Whynder explain whether the murder was for business reasons, which might be more honourable, or if someone was “just doing shit”. [ 47 ] Shortly after 1:30 p.m., the discussion returned to the co-accused and what he might be saying. Mr. Whynder indicated the co- accused had not been previously arrested or interviewed by the police to his knowledge. Cst. M then raised the issue of what happened to the gun and whether the co-accused had disposed of it.

He asked the following question: There’s no way the fucking cops are gonna get the burner though eh? [ 48 ] Cst. M then talks about the best way to get rid of a gun. He says he would take a boat into the ocean and throw it overboard. [ 49 ] Around 2:00 p.m., Mr. Whynder began wondering if his co-accused was trying to get a deal with the police. He said that if the co-accused put Mr. Whynder as the driver, does that mean that the co-accused was the shooter. Cst. M responded by saying that there must be an angle and they need to figure out what it is.

He said the problem is that where there are two guys involved there’s always one witness. In the middle of this discussion Cst. M asked, out of the blue: Who had the beef, you or him? [ 50 ] This was clearly directed to the motive which may have existed for the murder, and led directly to Mr. Whynder saying he was stabbed by the deceased with a pencil. Cst. M then asked detailed questions about this incident. This exchange had the appearance of a focused interview on that stabbing. [ 51 ] When Mr.

Whynder returned from the police interview in the early afternoon of March 11 th there was a discussion about the lack of evidence that the police had connecting him to the murder. Included in this, was the absence of his DNA. The last discussion of the DNA issue was at approximately 1:40 p.m. After three hours of conversation on other topics and Mr. Whynder’s phone call with his mother, Cst. M reintroduced the issue by asking the following: Seriously what’s the pro tip? How do I get no fucking DNA?

Clearly you did it right. [ 52 ] This led to a series of leading questions on what techniques might have been used, including those that Cst. M said he used himself. Mr. Whynder explained why his DNA would not be found in the rental vehicle that police alleged was involved in the killing. [ 53 ] Mr. Whynder said the police told him that a woman claimed she had rented the vehicle for him. Mr. Whynder told Cst. M. that it was hearsay and not proof that it happened that way. Cst. M’s response was: Hmm. Who gave it back to her? Did sh… you give it back to her?

Did you fucking… that way… you know what I mean? [ 54 ] In police interviews there are a number of techniques used which are designed to encourage the subject to provide information. These include making factual assertions, suggesting evidence which the police may have, offering excuses or explanations which might diminish the accused’s moral culpability, and suggesting that providing a present explanation might be more beneficial than waiting until trial. Cst. M utilized all of these in his interactions with Mr. Whynder.

This became more common in the late afternoon and early evening of March 11 th , after they had been in custody together for 24 hours. By way of illustration, I would note the following comments and questions from Cst. M found in the conversations between 4:45 p.m. and 10:00 p.m. on March 11 th : Yep. Maybe he’s [the co-accused] fucking counting on the fact that you’re not gonna… you know what I mean? You’re just gonna take it. You’re not gonna roll on him. They could have your DNA. They just haven’t told you they got the DNA. Well from the rental, do you know what I mean? They could have it [DNA evidence].

Maybe they’re just fucking holding that to fucking… holding that as their fucking… fucking like ace up their sleeve. ‘Cause they’re gonna come back and say it was fucking your beef, your beef with the guy in fucking prison. They’re gonna say fucking he [Whynder] is first degree. He planned it. That’s why he got the fucking rental car. They’re gonna say fucking he stabbed you. You got out. You tracked him down. You figured out where he was. You got this rental car. And that’s the problem. Fucking that’s… that’s the problem ‘cause it… they’re not wrong but like you gotta tell them they’re wrong. Yeah.

That’s the problem. No one knew you were there until he [co-accused] put you there. What was his [co-accused] beef with the dude? Oh he’s [co-accused] gonna say fucking uh you know he may be the driver but fucking you were the one who fucking lured buddy…

So the key there is fucking you didn’t plan it, you know what I mean? Buddy, buddy fucking planned it. But how do you say someone fucking planned it without throwing him under the bus? Then he [co-accused] could also say what you said, you fucking you made him do it you know what I mean? Like he could say fucking it was your plan, you got all the shit together… yeah he was the one fucking you know… but you’re the fucking guy. Or that you helped with the fucking… helped with the fucking bodies or something like that, right? They’re [the police] gonna say you fucking… you fucking (unintelligible) the getaway car.

You helped him dispose of the bodies and shit like that. Yeah, but they’re gonna say is that fucking guy stabbed you in jail… They’re gonna say did you know he [co-accused] was gonna go up and shoot that guy? And they don’t know about the fucking … you got a fucking … you had a past with that guy. He’s [co-accused] gonna say fucking… watch he’s gonna say (unintelligible) yeah fucking Ricardo, Ricardo made me pick buddy up and drove him out. He got shot and then fucking Ricardo drove us away. [ 55 ] The next morning the parties resumed discussions about how the matter might play out. Cst.

M pointed out that the co-accused had betrayed Mr. Whynder and Mr. Whynder asked for suggestions as to how to deal with it. Cst. M offered the following: Well I don’t know man. I think, I think you gotta be pretty clear on freaking whose idea this shit was and it doesn’t sound like you’re gonna be able to get out of fucking driving the car. Maybe, maybe you were driving ‘cause you were scared the guy was gonna fucking kill you too. I don’t know. [ 56 ] After discussing the fact that Mr. Whynder could say that he stayed in the vehicle, Cst.

M said: They’re gonna wanna know if fucking… how’d you get buddy to the car, that’s what they’re gonna wanna know. Like if you guys were friends before or not, right? Or did you fucking threaten him to get in the car … [ 57 ] The interactions between Mr. Whynder and Cst. M evolved over their time together. After the second police interview, on the morning of March 11 th , the discussions with Cst. M became increasingly focused on the charges against Mr. Whynder, the evidence which the police might have and what strategy he should follow to minimize his jeopardy. At the same time, Mr.

Whynder was becoming concerned about having no contact with family members and the lack of activities which might help pass the time. His only option seemed to be talking with Cst. M, who was more than happy to oblige. [ 58 ] Even though he had no knowledge of the actual investigation underway by Halifax police, Cst. M subtly and skillfully moved the conversation into areas that might be of interest to them. This included whether there was a “beef” between Mr.

Whynder and the deceased (ie. motive), whether there was hard evidence which might tie him to the crime and what techniques were used to minimize evidence such as DNA or fingerprints. Cst. M also offered suggestions as to the story Mr. Whynder might tell in order to minimize his role. [ 59 ] There were many examples where Cst. M introduced topics or returned to them in order to obtain more information from Mr. Whynder. There were also leading questions asked by Cst. M. and exchanges where he used a variety of interview techniques. [ 60 ] Cst. M was successful in engaging Mr.

Whynder in discussions about the Sudds murder which resulted in evidence which the Crown would like to introduce at trial. I am satisfied that Cst. M was more than an active listening post and, in fact, engaged in conduct which elicited a lot of information from Mr. Whynder. When one reviews the audio and video recording, it is apparent that many of the statements made by Mr. Whynder were the result of questioning by Cst. M. When considered in conjunction with Mr. Whynder’s conditions of confinement, Cst. M’s actions resulted in a breach of his rights under s. 7 of the Charter .

Should the Evidence be Excluded under Section 24(2) of the Charter ? [ 61 ] Once the Charter breach has been established by the defence the court must consider whether to exclude the evidence obtained from the trial under s. 24(2) of the Charter . I would adopt the reasoning of the Supreme Court of Canada in Hebert and Broyles , that the admission of evidence obtained involuntarily from the accused renders the trial unfair. Such a Charter violation is serious and exclusion of the evidence would not bring the administration of justice into disrepute.

The Crown acknowledges that the loss of this evidence would not be fatal to their case at trial. [ 62 ] The evidence on the voir dire shows that Mr. Whynder did not intend to provide any information whatsoever to the police. By engaging in the undercover operation in the circumstances which existed in this case, the police overrode Mr. Whynder’s intention and violated his right to remain silent. The exclusion of evidence under s. 24(2) of the Charter does not require a finding that the police acted in bad faith, and I would make no such finding in this case.

The evidence is clear that the undercover officers worked diligently to ensure that the operation was carried out in accordance with what they understood the law to be. Unfortunately, the implementation did not achieve that standard. [ 63 ] The discussions between Mr. Whynder and Cst. M were lengthy, repetitive and built upon themselves. I do not think it is possible or appropriate to try and parse out portions which might superficially appear to be voluntarily, from those which were elicited by Cst. M and his conduct.

For this reason, I would exclude the entirety of the evidence obtained from the undercover operation.

Wood, J.