R. v. Reid, 2013 ONSC 1245

CITATION : R. v. Reid, 2013 ONSC 1245 COURT FILE NO.: 12-40000268 DATE: 20130227 SUPERIOR COURT OF JUSTICE - ONTARIO RE: R. v. KEIFOR DENHUGH REID BEFORE: Justice Spies COUNSEL: Luke Schwalm, for the Crown Stacey Alexander Taraniuk , for the Defendant HEARD: January 21, 22, 23, 25, 28, 2013 RULING on crown’s application to tender stateMeNt of defendant and defence application Pursuant to Sections 8 , 9 , 10(

b) and 24(2) of the Canadian Charter of Rights and Freedoms Overview [ 1 ] The defendant, Keifor Reid, stands charged that on July 21st, 2010, he committed the following offences:

(1) Occupant of a motor vehicle with firearm;

(2) Possession of a loaded prohibited firearm;

(3) Possession of firearm knowing he had no Licence;

(4) Careless storage of a firearm;

(5) Careless storage of ammunition;

(6) Carrying a concealed weapon;

(7) Possession of cannabis for the purpose of trafficking; and

(8) Possession of cocaine for the purpose of trafficking. At the commencement of the trial the defendant brought an application for an order pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms to exclude the drugs and firearm seized at the time of his arrest, on the basis that his

section 8 and 9 Charter rights were violated. It is his position that the police did not have reasonable and probable grounds to arrest him and that the search of his person and the vehicle that he was driving following his arrest was, therefore, unlawful. [ 2 ] The Crown also brought an application for an order permitting introduction in evidence of an utterance alleged to have been made by Mr. Reid shortly after he was arrested. It is Mr. Reid’s position that his

section 10 (

b) rights were breached as he was not properly cautioned before this statement was allegedly made and that the statement was the product of improper questioning. [ 3 ] Mr. Reid reelected trial without a jury. The applications proceeded by way of a voir dire blended with the trial although it was understood that a decision would be made on the applications before Mr. Reid had to elect whether to call evidence in his defence at trial. [ 4 ] On January 29, 2013, I gave an oral ruling, without reasons, dismissing the defence application to exclude evidence and the defence s. 10 (

b) application and ruled that any utterances by Mr. Reid were admissible as part of the Crown’s case. I advised counsel that written reasons would follow. These are my reasons. The Issues [ 5 ] Mr. Reid was arrested by way of a high-risk takedown while he was seated in the driver’s seat of a 2002 Nissan Altima (the “Altima”), while parked at a plaza located just north of the intersection of Steeles Avenue West and Dufferin Street (the “Plaza”), just before midnight on July 21, 2010. During the search incident to arrest, two dime bags; one containing 0.82 and the other 0.22 grams of marijuana were found in Mr.

Reid’s front jean pocket. Three pieces of crack cocaine with a combined weight of 1.67 grams were found in the ankle area of one of Mr. Reid’s socks. [ 6 ] The search of Mr. Reid and the vehicle he was driving was done without a warrant to search and as such is presumptively

unlawful. Therefore, the burden falls on the Crown to prove on a balance of probabilities that the search was lawful. As the lawfulness of the search depends on the lawfulness of the arrest of Mr. Reid, I have proceeded on the basis that the Crown also bears the onus of proving on a balance of probabilities that the arrest was lawful. [ 7 ] The central issue with respect to Mr. Reid’s application alleging breaches of his

section 8 and 9 Charter rights is whether or not the Crown has satisfied me that Det. Heitzner, who made the decision to arrest Mr. Reid, had reasonable and probable grounds to arrest. If he did, no issue is raised with respect to the searches that followed. If he did not, then not only was there a breach of

section 9, the Crown concedes that the searches that followed were not lawful and breached Mr. Reid’s

section 8 Charter rights. [ 8 ] With respect to the utterances alleged to have been made by Mr. Reid to D.C. Winter, the Crown bears the onus of establishing beyond a reasonable doubt that they were voluntary and Mr. Reid bears the onus of establishing on a balance of probabilities that his

section 10(

b) Charter rights were violated. [ 9 ] The central issue with respect to the admissibility of the utterances is whether or not Mr. Reid was properly cautioned by D.C. Winter before the utterances were made by and in particular whether or not he was given the primary caution which asks whether or not the accused person wishes to say anything in answer to the charges and informs the accused person that he is not obliged to say anything unless he wishes to do so and that whatever he may say may be given in evidence against him. It was agreed that it was not necessary for D.C. Winter to give Mr.

Reid the secondary caution as he was the first officer to interact with him. It is also submitted by Mr. Taraniuk that the officers failed to hold off questioning Mr. Reid and that his utterances were made in answer to their questions. There is no suggestion that they induced Mr. Reid to make a statement by threats or promises or that he did not have an operating mind or was under the influence of alcohol or drugs. [ 10 ] I heard from several of the officers involved in Mr. Reid’s arrest. Mr. Reid did not testify on the voir dire . Uncontested Facts and Preliminary Findings of Fact [ 11 ] On July 15th, 2010, D.C.

Jason Reynolds received information from a Confidential Informant ("C.I."). D.C. Reynolds testified about some of the information that he received in connection with a tip from this C.I. about a male named Keifor but counsel agreed that the only relevant information about the C.I. is what was passed on to Det. Heitzner, since he is the one who made the decision to arrest Mr. Reid. [ 12 ] D.C.

Reynolds knew who Keifor was because of an earlier investigation and did some investigation to determine his address and vehicle and he found a photograph of him. [ 13 ] On Wednesday, July 21st, 2010, at 5:00 p.m., a team of six officers from the Toronto Police Service (“TPS”) Guns and Gangs Task Force, at 31 Division, which included D.C. Reynolds, participated in a briefing. These officers were Det. Heitzner, D.C. Reynolds, D.C. Duncan, D.C. Winter, D.C. Taylor, D.C. Wauchope and D.C. Judd, who was the central note taker (collectively, the “Team”).

These seven police officers were involved in the initial surveillance and investigation of Mr. Reid and his arrest. Save for D.C. Judd, who was in a car driven by D.C. Winter, the other officers were each driving their own unmarked vehicle. The officers were all in plainclothes. [ 14 ] During the briefing, D.C. Reynolds gave the Team a photograph of Mr. Reid, and told the Team that the person of interest was a male named Keifor Reid, that he was born on November 2, 1986 and described him as "male black, 5′8″, 160 lbs., short black hair”.

The address of interest was given as 8 Montcalm Blvd., Vaughan and the vehicle of interest was described as the Altima, registered to a third party. The Team was told by D.C. Reynolds that Mr. Reid was suspected to be in possession of a firearm and was dealing drugs. According to D.C. Reynolds he informed the entire Team that he had a C.I. although he did not distinguish what information came from the C.I. versus his own investigation.

He also informed the Team that information from this C.I. had been utilized by the TPS on one prior occasion and the information did not produce the item that the informant gave information about. [ 15 ] I accept the evidence of D.C. Reynolds as to what the Team was told. It is not corroborated by the other officers who testified although D.C. Duncan knew there was a C.I. involved. Det. Heitzner said only he was told about the fact there was a C.I. but I find he was mistaken about that. More troubling is the fact that he did not testify that D.C.

Reynolds told him that the C.I. had been used before without the item being found. He was not specifically challenged on this aspect of the information he had, however. Given the sensitivity of managing a C.I. and given that D.C. Reynolds is the handler of this C.I., I find D.C. Reynolds’ evidence as to what the Team was told to be the most reliable. Furthermore, the information about the C.I. not providing information that produced the item on a prior occasion would be very relevant and, as a competent officer, is something D.C.

Reynolds would want to pass on to the Team. [ 16 ] The Team’s objective was to conduct surveillance of Mr. Reid to corroborate the information provided by D.C. Reynolds in order to arrest him. At 7:45 p.m. Mr. Reid was first observed at 8 Montcalm Blvd. driving the Altima. Over the next four hours and 53 minutes, the various members of the Team made observations of Mr. Reid. There is no dispute that Mr. Reid was not observed to do anything the police considered suspicious until after he drove to the Plaza at 11:55 p.m. [ 17 ] At this point only Det. Heitzner was in a position to make observations of Mr.

Reid although the other members of the Team were nearby. Det. Heitzner testified that after Mr. Reid pulled into the parking lot, he observed him park next to a white pick-up truck with a cab on back. Both vehicles were facing southbound and other than Det. Heitzner’s vehicle, were the only two vehicles in the parking lot. Det. Heitzner had driven his vehicle into the Plaza through a different entrance and was positioned about 30 metres south of Mr. Reid’s vehicle facing north; in other words facing Mr. Reid’s vehicle and the truck. He remained in his vehicle. According to Det.

Heitzner, there were no lights on the truck and he could not see its licence plate or if anyone was in it or if the windows were down. The lights on Mr. Reid’s vehicle were also turned off once he parked. [ 18 ] After one to two minutes, Det. Heitzner testified that he saw Mr. Reid get out of the driver's side door of his vehicle and walk to the front of the vehicle just past the driver's side door. He leaned over the hood of the vehicle and Det. Heitzner alleges that he

observed a throwing motion with Mr. Reid’s right arm toward the driver’s side of the truck. Det. Heitzner did not see any object that may have been thrown, nor if there was an object, did he see where it went. He did say any object would not have been large as he otherwise would have been able to see it. He did not see anyone exit or enter the truck. [ 19 ] Det. Heitzner testified that at this point the lights on the car Mr. Reid was driving came back on and the vehicle moved slowly southbound through the parking lot as if Mr. Reid had only taken his foot off the break. As it went past and cleared the truck, Det.

Heitzner testified that he observed the truck headlights come on and it “squealed” out of the parking lot through the north entrance off Dufferin Street. [ 20 ] There is no dispute that no other officer from the Team saw the white pick-up truck. Det. Heitzner did not make any further observations of the truck in terms of year, make or model as it turned in front of him save that it was an older model. He said that he could not see this because it was dark. [ 21 ] Det. Heitzner did not attempt to have the truck stopped and so there is no information as to what, if any, relationship the occupant(

s) of that vehicle had with Mr. Reid and what, if anything, he threw towards the truck. Det. Heitzner explained that he needed all of the officers for the high-risk takedown. Although I understand why Mr. Taraniuk questions this, I have decided that this is an area where I cannot and should not second guess an operational decision made by a senior and experienced police officer. [ 22 ] At 11:58 pm, Det. Heitzner ordered the Team to execute a high-risk takedown of Mr. Reid and arrest him for the possession of a firearm. As a result, as Mr. Reid’s vehicle was moving toward the exit onto Steeles Avenue West, Mr.

Reid was surrounded by undercover police vehicles and stopped at gunpoint. [ 23 ] Mr. Reid was ordered out of the car by Det. Heitzner and was directed to walk backwards towards D.C. Winter who arrested him for possession of a firearm, handcuffed him to the rear and walked him to a grassy area where he was told to kneel down. There D.C. Winter conducted a pat down search and found the drugs [ 24 ] At this point D.C. Winter advised Mr. Reid that he was arrested for possession of marijuana and cocaine for the purpose of trafficking. Mr. Reid was advised by D.C. Winter of his s. 10(

b) Charter rights to counsel. D.C. Winter testified that he also cautioned Mr. Reid and in particular gave him the primary caution. He only noted that he gave Mr. Reid “RTC” in his notebook but said he had a recollection of giving the caution as well as he had it written with the rights to counsel in his memo book and read both out altogether. He asked Mr. Reid two questions at the end of reading these rights and caution to him, namely “Do you understand?” and “Do you wish to speak to a lawyer now?” He testified that Mr. Reid said that he understood and that he did not have a lawyer and that he told Mr.

Reid Duty Counsel could be called for him. [ 25 ] Both D.C. Winter and D.C. Duncan testified that Mr. Reid seemed very interested and kept looking at the vehicle when it was being searched by the officers. D.C. Winter testified that Mr. Reid looked very nervous and kept focusing all of his attention on his vehicle. He believed it was being searched at that time. At this time he testified that Mr. Reid told him that the car was not his and that he had not been in trouble for a long time and was trying to stay clean. This statement was true as the vehicle was registered to a third party and I am advised that Mr.

Reid does not have a criminal record. This is the utterance the Crown seeks to introduce as part of its case. [ 26 ] There is no other evidence with respect to what D.C. Winter told Mr. Reid or his response although he did admit to having a conversation with him which I will come to. D.C. Duncan who was nearby testified that he did not hear what was said. [ 27 ] D.C. Reynolds searched the vehicle that Mr. Reid had been driving, after his arrest.

He gave evidence about how he noticed that the interior ceiling dome light looked like it had been tampered with and how he pulled off the light and discovered a loaded firearm inside a sock in the space between the interior roof of the car and the metal roof. [ 28 ] The Team returned to 31 Division in the early morning hours of July 22nd, 2010, and attended a debriefing between 1:30 a.m. and 1:40 a.m. [ 29 ] Aside from the rough surveillance notes D.C. Judd created during the investigation, none of the officers who testified, i.e. Det. Heitzner, D.C. Winter or D.C. Reynolds, with the exception of D.C.

Duncan made their own police notes regarding their observations of Mr. Reid the prior evening/night. Their notes were made late afternoon on the next day, near the start of their next shift. [ 30 ] There is no reference in the rough surveillance notes of D.C. Judd to any of the observations Det. Heitzner alleges that he made of Mr. Reid’s vehicle parking beside a white pick-up truck in the Plaza parking lot at 11:55 p.m. or what he says he saw when Mr. Reid exited his vehicle and thereafter. At 11:55, D.C. Judd’s own police notes and his rough surveillance notes state that he was informed by Det.

Heitzner that the target vehicle had pulled into the Plaza just north of 1514 Steeles Avenue West. The very next entry in D.C. Judd’s own police notes and his rough surveillance notes is that Det. Heitzner ordered a high-risk takedown at 11:58 p.m. [ 31 ] Sometime after the debrief on July 22nd, 2010, D.C. Judd produced a typewritten surveillance report that included the following entries in bold for the date July 21st, 2010, at 23:55, attributed to Det. Heitzner. He bolded them because they were an addition to his rough notes: V1 parks beside a small white pick up truck, both facing S/B.

T1 exits vehicle and throws something in direction of the white pick up truck. V1 and white pick up truck both begin to pull out of parking spots. V1 travels S/B through lot towards 1514 Steeles Avenue W and white pick up truck travels E/B towards Dufferin Street. [ 32 ] When D.C. Reynolds, D.C. Winter and D.C. Duncan created their police notes, they included near verbatim accounts of the information included in the bolded portion of the typed surveillance report at 23:55 regarding Det. Heitzner's alleged observations. Their

evidence can be summarized as follows: • D.C. Reynolds testified that from what was broadcast over the radio his impression was that Mr. Reid had been involved ina drug transaction. His own notes set out almost verbatim the bolded portion of the surveillance report. • D.C. Winter did not have an independent recollection of what was voiced over the radio. I am concerned that D.C. Winter’sevidence changed materially from his examination in chief to his cross-examination. In chief he said that he could not remember whatwas said over the radio but in cross-examination he suddenly remembered that Det.

Heitzner said something about a white pick-up truckand Mr. Reid and that there was a “meet” in the Plaza with the white pick-up truck, that Mr. Reid exited his vehicle and threw somethingin the direction of the white pick-up truck and both Mr. Reid and the truck pulled out of the lot. His explanation for why and how hismemory was refreshed was not very convincing. • D.C. Duncan claim to have heard Det. Heitzner's observations regarding the white pick-up truck over the police radio butultimately admitted that he may have made some of his police notes the next day once the typed surveillance report was available.

Analysis Has the Crown established that Mr. Reid’s arrest was lawful and not in breach of his s. 9 Charter rights? (

a) The Law [33] Counsel agree on the governing law. It is the application of that law to the facts of this case that is in issue. Section 495(1)(a)of the Criminal Code provides legislative authority for a police officer to arrest a person without a warrant if the officer, on reasonablegrounds, believes the person has committed an indictable offence. Reasonable grounds have both a subjective and objective component. As Cory J. wrote in R. v. Storrey (1990), (SCC), 53 C.C.C. (3d) 316 (S.C.C.): … an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest.

Those grounds, must inaddition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must beable to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need notdemonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie casebefore making the arrest. (at para. 17) [34] In R. v. Lawes, 2007 ONCA 10 , [2007] O.J. No. 50 (Ont.

C.A.), the court stated that in considering the lawfulness ofan arrest, “[t]he totality of the circumstances relied upon by the arresting officer will form the basis for the objective assessment. Itwould constitute an error in law to assess each fact or observation in isolation. An objective assessment will include the dynamics withinwhich the police officer acted, and his or her experience: see R. v. Golub,” (at para. 4 citations omitted). [35] In R. v. Simpson (1993), (ON CA), 79 C.C.C. (3d) 482 (Ont.

C.A.), a case involving the requirements foran investigative detention, which is equally applicable to the case at bar, Doherty J.A. referred to Storrey and stated that the requirementthat the facts must meet an objectively discernible standard: …serves to avoid indiscriminate and discriminatory exercises of the police power. A “hunch” based entirely on intuition gained byexperience cannot suffice, no matter how accurate that “hunch” might prove to be.

Such subjectively based assessment can too easilymask discriminatory conduct based on such irrelevant factors as the detainee’s sex, colour, age, ethnic origin or sexual orientation.Equally, without objective criteria detentions could be based on mere speculation. A guess which proves accurate becomes in hindsight a“hunch”. (at para. 61) [36] As a matter of law, the “reasonable person” is presumed to have the knowledge and experience in this case in illicit drugmatters, of a knowledgeable and experienced police officer.” See R. v. Juan 2007 BCCA 351 , [2007], B.C.J.

No. 1402 at para.19 (B.C.C.A.). [37] Information provided to police by a confidential informant must be corroborated in order for it to provide police with a basisfor a lawful arrest. In R. v.

Debot, (SCC), [1989] 2 S.C.R. 1140, writing for the court on the issue of the manner inwhich the police could utilize the information provided by the confidential informant to support a warrantless search, Wilson J., set out atest with three concerns to be addressed in corroborating the information: [T]here are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, wasthe information predicting the commission of a criminal offence compelling?

Second, where that information was based on a "tip"originating from a source outside the police, was that source credible? Finally, was the information corroborated by police informationprior to making the decision to conduct a search? (at para. 53) [38] The three factors enunciated by Wilson J. were not intended to form separate tests. Instead the totality of the circumstancesmust meet the standard of reasonableness. She concluded that, "[w]eakness in one area may, to some extent, be compensated bystrengths in the other two". (at para. 53) [39] The facts in Debot are quite different from the case at bar.

In that case the informant had provided specific information to thepolice predicting a drug transaction on a specific date, when on that date it would take place and the specific location. The informant hadacquired the knowledge from one of the participants in the deal. The information did not take the form of bald conclusory statements or"mere rumour or gossip". In addition, the confidential informant had been previously tested by police and the information provided hadresulted in the location of drugs.

Lastly, much of the specific information provided by the informant regarding the deal was corroboratedby police. On that basis, Wilson J. determined there was enough corroborative evidence to establish a drug deal had taken place and thepolice had the appropriate grounds to conduct a search, (at paras. 54 to 62).

[40] Wilson J. addressed the concern in other cases in which the information was less compelling, specific and where informantcredibility is an issue. In these circumstances, greater corroboration of the information provided may be necessary: In my opinion, it should not be necessary for the police to confirm each detail in an informant's tip so long as the sequence of eventsactually conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence.

As I noted earlier, however,the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or wherefewer details are provided and the risk of innocent coincidence is greater. (at para. 63) [41] In this case Mr. Taraniuk relied on two cases, which he submits are similar to the case at bar, in support of his

section 9application. In R. v. Raphael, [2010] O.J. No 5916 (SCJ), an untested confidential informant provided information to police that theaccused was in possession of a handgun. The information pertaining to the handgun lacked specificity but the informant was able toprovide police with a detailed description of the accused and the vehicle he drove, including the licence plate number. Based on thatinformation, police set up surveillance of the address belonging to the registered owner of the vehicle. They made no observations thatsuggested Mr. Raphael was armed with a firearm. They observed Mr.

Raphael smoking what they thought was a “joint” and at trial oneof the officers also alleged, for the first time, that he had observed what was believed to be a hand to hand drug transaction. Justice Kellydid not accept the evidence of a hand to hand transaction and concluded that the officers made no observations of anything reflecting Mr.Raphael’s involvement in criminal activity and that in arresting Mr. Raphael for possession of a handgun, they simply relied on a tip thatwas neither compelling, credible nor corroborated, (at para. 36).

Finding that the tip provided by the informant was neither compelling,credible nor corroborated, Kelly J. found that the accused was arbitrarily detained and that his rights pursuant to

section 9 of the Charterwere violated. [42] There are similarities to the case at bar with one important exception: in this case Det. Heitzner subjectively saw what hebelieved to be a drug transaction and I have accepted that evidence. [43] The other case relied upon by Mr. Taraniuk; R. v. Smith, [2009] ONCJ 641 , affirmed at [2011] ONCA 748 is arguably closer factually to the case at bar.

In that case the confidential informant provided police with more detailed information butnot only had the confidential informant not been proven reliable by police, the confidential informant had a lengthy criminal record, was"deeply entrenched in the criminal culture" and appeared to be motivated by the hope for consideration in regard to his own outstandingcriminal charges. During surveillance of the accused the police observed him leave his residence and drive to a townhouse complexwhere an unknown male walked to his car and got in. The car moved slowly for approximately 10 metres and stopped.

Because thewindows were tinted no observations could be made of any activity nor could anything said be overheard. The unknown male got outand walked towards the complex and was not detained following the incident. He was not seen carrying anything in or from the car.

Mr.Smith was arrested and cocaine was found in his vehicle and, ultimately, cocaine, cash, a firearm and ammunition were found at hisresidence pursuant to a search warrant. [44] Justice Jennis, at paras. 15-16, found that the information received by police was less than compelling as a result of thecriminal background of the informant and the basis for the motivation to provide information for consideration in regard to criminalcharges and other deficiencies he found with respect to the tip.

With respect to the observations by police during surveillance, Jennis J.found that the officers' testimony that they had experience in investigating drug trafficking and that the "brief meeting with theunidentified male was "indicative" of a drug transaction" did not meet the objective component of grounds for arrest. Jennis J.concluded: I find that the arrest fell short of passing the objective requirement insofar as reasonable grounds are concerned.

Combining the vagueinformation from a previously untested informant with the observation of one event which was also reasonably capable of innocentexplanation is insufficient to meet the standard for objective belief of the commission of the offence subjectively believed by theofficers. This information and observation certainly justified further observation and investigation but not arrest. (at para. 18) [45] One can understand the result in Smith given that the officer saw nothing more than a meeting of two individuals. Again inthis case there is more because of the observations made by Det.

Heitzner, not only of the throwing motion but the other circumstancessurrounding the meeting of what must have been Mr. Reid and at least one other person. [46] Mr. Schwalm relies primarily on R. v. Hanson, a decision of Garton J. [2009] O.J. No. 4152 (SCJ) who found that an officer’sobservations were enough to satisfy the subjective and objective test for arrest. This case did not involve a confidential informant. Theofficer observed a man making a flicking motion on the palm of his hand with his index finger as though he were moving “littlearticles”.

The officer also observed two other males who stood nearby observing the man’s palm. In coming to this conclusion that thearrest was reasonable, Garton J. considered R. v. Golub (1997), (ON CA), 117 C.C.C. (3d) 193 (Ont.

C.A.), at para.18. where the court pointed out that information that would not meet the reasonableness standard on an application for a search warrantmay still meet the standard in the context of an arrest because of volatile and rapidly changing situations, at para. 55. [47] The totality of the circumstances considered by Garton J. included: the extensive experience of the officer, the actions of theperson observed, that the officer only had one or two seconds to make his observations, that the person observed clearly had somethingin the palm of his hand that he was moving, that the other two males appeared to be looking at what the person was holding, that theofficer had seen a similar flicking motion hundreds of times in connection with the purchase and sale of crack cocaine, and that the threemales were not standing entirely out in the open. [48] In my view the facts of the Hanson case are stronger than the case at bar, particularly given the evidence of the officer that hehad seen this type of flicking motion hundreds of times in connection with a drug transaction. (

b) Analysis

[ 49 ] With these cases in mind, I turn to an application of the law to the facts in this case. First of all it is clear that I must assess what Det. Heitzner knew and the basis upon which he decided to arrest the defendant as he was the arresting officer. In that regard it is not enough to consider only what he observed in the Plaza as he made it clear in his evidence that he considered all of the information that he had and that he relied in part, in deciding to arrest Mr. Reid, on information provided at the briefing by D.C.

Reynolds that he knew came at least, in part, from a confidential informant. [ 50 ] Accordingly, the concerns raised in Debot must be considered in determining whether his decision to arrest Mr. Reid was lawful. Since Det. Heitzner did not know what information came from the C.I. and what came from any investigation done by D.C. Reynolds, if any, I will assume that he considered all of the information to come from the C.I. (

i) The first inquiry: Was the information from the C.I. predicting the commission of a criminal offence compelling? [ 51 ] I find that the information from the C.I. was not very compelling although it did provide details of the name of the target, his description, the car he drove and the address he was associated with. However, anyone who knew Mr. Reid would know his first name was Keifor, would be able to provide an accurate description of him, would know the vehicle that he drove and the address he would be associated with. The information that he had a firearm and was dealing drugs was of a general nature.

There was no information provided predicting a specific criminal offence at a specific location, the nature of drugs the defendant allegedly dealt in, whether he was a street level dealer or somewhat further up the supply chain, or where he was known to deal in drugs. Furthermore, there was no information provided with respect of the source of the C.I.’s information regarding the defendant’s alleged trafficking in drugs and being in possession of a firearm. It is unknown if it was firsthand information or merely based on rumour. [ 52 ] Mr. Taraniuk argued that it was material that Det.

Heitzner knew this information had been received from the C.I. seven days earlier and that is was, therefore, not current. I do not accept that submission in these circumstances. If the information was sufficiently compelling and corroborated, information that Mr. Reid was known to deal in drugs and carry a firearm would not be information that would be expected to change in the short term; certainly not in a matter of days. (ii) The second inquiry: Was the C.I. credible? [ 53 ] Mr. Schwalm fairly conceded that Det. Heitzner had no information suggesting the C.I. had been found reliable in the past.

Furthermore, I have found that Det. Heitzner had been told that information from this C.I. had been utilized by the TPS on one prior occasion and the information did not produce the item that the C.I. gave information about. Det. Heitzner testified before D.C. Reynolds and it was not specifically put to him that he had this information although he certainly did not testify that he did when he was asked what he knew. I find this puzzling since this would have been important information. I agree that this information undermines the credibility of the C.I. That said, Det.

Heitzner did consider it was necessary to corroborate the information provided at the briefing through surveillance. There is certainly no evidence that he considered the C.I. to be credible or reliable or that the information did not need to be corroborated. [ 54 ] I have considered what impact, if any, the fact that previous information from the C.I. had not produced the item that the C.I. gave information about should have had on Det. Heitzner. Mr. Taraniuk argued that it should have detracted further from the C.I. and made the C.I. less than credible.

None of the officers were asked about this but having considered this submission I find that Mr. Taraniuk’s conclusion does not necessarily follow. Det. Heitzner was not told why there had been no success on the prior occasion and he was certainly not told by D.C. Reynolds, who was handling the C.I., that he believed the C.I. to be unreliable or not credible. I, therefore, find it was enough for Det. Heitzner to believe that he needed to corroborate the information from the C.I.

There was nothing in his evidence to suggest that he relied in any way on any belief that the C.I. was a credible source. (iii) The third inquiry: Was the information from the C.I. sufficiently corroborated? [ 55 ] This application really turns on the third prong of the Debot test: was the information from the C.I. sufficiently corroborated prior to Det. Heitzner making the decision to arrest Mr. Reid? In considering this prong, the first issue is what exactly did Det. Heitzner observe? [ 56 ] In his cross-examination of Det. Heitzner, Mr.

Taraniuk never challenged his observations of the white pick-up truck nor did he ever suggest that he did not see any motion by the defendant with his arm; he did question Det. Heitzner on whether what he saw could have been a wave. The real challenge was whether or not what Det. Heitzner testified he saw corroborated the information from the C.I. [ 57 ] In this context, however, I have considered the credibility and reliability of Det. Heitzner’s evidence. In considering this question I have concluded that I have only Det. Heitzner’s evidence on the voir dire as to what he observed.

I find that he did not voice over the police radio any of the observations that he said that he made that are set out in the bolded portion of the typed surveillance report. My reasons in coming to this conclusion are as follows. [ 58 ] Although this was the first time D.C. Judd was in the role of a central note taker, that was his sole responsibility and he described that responsibility as listening to the radio and writing down what he heard to the best of his ability. He was a passenger in a car driven by D.C. Winter and admitted that before the call for the takedown that he had no distractions.

Nevertheless, he wrote nothing down in his rough surveillance notes for the three minutes in advance of the order for a takedown, when Det. Heitzner alleges he made his observations of Mr. Reid and the white pick-up truck. D.C. Judd admitted that he would record in his own police notes the reasons for an arrest and that this is obviously important information. His explanation that he could not write down any of this information in his rough notes at the time was that Det.

Heitzner had said over the radio that the target vehicle was meeting another vehicle and there was “some sort of hand to hand” and that he was now getting ready for a takedown. None of the other officers, including Det. Heitzner, said there was any information in advance of the 11:58 p.m. warning of an impending high-risk takedown. I do not accept D.C. Judd’s evidence that he had any notice to get ready for a takedown which would have prevented him from making notes of what he heard over the radio before 11:58 p.m.

I find it likely that if any of the bolded information in the surveillance report had been put over the radio by

Det. Heitzner or even the more general information about a hand to hand having been observed, that D.C. Judd would have written at least some of it down in his rough surveillance notes. [ 59 ] Furthermore, D.C. Judd admitted that as he participated in the takedown he had to write his rough notes of the events during the takedown and following, after the fact, and that he did so backtracking to 11:58 while he was still on the scene. Although he got out of the vehicle and covered part of the car during the takedown, he did not participate in the arrest of Mr. Reid or the searches. In my view, if D.C.

Judd had heard any of what he alleged, between 11:55 and 11:58 p.m., there is no reason why he could not have filled that gap in as well when he caught up with his notes at the scene, particularly given the importance of the information. [ 60 ] I also find the evidence of Det. Heitzner as to what he voiced over the radio to be unreliable. He testified that he believed that he put some of it over the radio but said it all occurred very quickly.

He also testified that he put over the radio that the target vehicle parked next to the white pick-up truck but I note this is also bolded as an addition to the typed surveillance report. Det. Heitzner had no recall of any additions or deletions to the rough notes prepared by D.C. Judd being discussed at the debrief even after refreshing his memory by looking at D.C. Judd’s rough notes and comparing those notes to the bolded portions of the typed surveillance report, which he admitted reflected an addition and that it represented his observation.

The information in that addition must have come from him either in information he gave at the debrief to the entire Team or in a conversation with D.C. Judd since no other officer made any personal observations of Mr. Reid in the Plaza or the white truck. [ 61 ] As for what D.C. Judd testified he heard over the radio about a hand to hand transaction, I do not accept that evidence either. If he heard this I believe he would have noted it. Furthermore, although this evidence is consistent with the evidence of D.C. Reynolds and D.C. Duncan, I find that none of the officers gave reliable evidence on this point.

Their recollection now of what they heard over the radio was not clear and their own notes were of no assistance in refreshing their memory as they made them after the typed surveillance report was prepared and they essentially wrote down what was written in the bolded portion of that report. This clearly clouded their recollection of what they in fact heard over the radio. [ 62 ] D.C. Judd testified that the information bolded in the surveillance report was information clarified to him during the debriefing by Det. Heitzner. If it was given to D.C.

Judd during the debriefing, it is odd that he did not make note of it in his rough notes. It would have been a lot to remember before he typed it up. Furthermore, I would have expected Det. Heitzner to have some memory of a discussion about his observations that formed such a significant part of his decision to arrest Mr. Reid, being missing from the typed surveillance report. This does leave me with a serious concern about this recollection of the debriefing and his ability to be able to distinguish between what he put over the radio and may have said later. [ 63 ] Mr.

Taraniuk submitted that it is very strange that none of the officers remember a discussion about this addition to D.C. Judd’s notes. This, however presumes, that there was a discussion about an addition to the notes made by D.C. Judd at the debriefing. It is possible that information came directly to D.C Judd or even that the decision to make the addition and bold it was that of D.C. Judd alone after hearing Det. Heitzner describe what he observed at the debriefing. D.C. Judd may have considered the information important and simply decided to add it to the surveillance report.

I am unable to conclude how the addition came to be. [ 64 ] In my view, if contrary to what was suggested by Mr. Taraniuk, there was nothing nefarious about this addition, then Det. Heitzner may reasonably have no recollection as there would be no particular reason for him to remember that discussion from what I imagine have been many debriefs he has participated in since this one. D.C. Judd may have assumed the debriefing is when he received this information from Det. Heitzner and this could also explain why the other officers had no recollection of discussion such an addition. [ 65 ] Mr.

Taraniuk submitted that the bolded addition in the typed surveillance notes was a deliberate tactic by Det. Heitzner because he would have known of the practice described by D.C. Reynolds and the other officers of using the typed surveillance report to prepare their own notes and that he would have expected the officers to record the additional information setting out his observations in their notes in the hope that it would later enhance his evidence if the matter went to trial. [ 66 ] This theory is quite convoluted and was never put to Det. Heitzner nor any of the other officers save, indirectly, D.C. Duncan.

He was asked by Mr. Taraniuk if he had been told by Det. Heitzner to put the information that is contained in the addition into his own police notes. He denied the suggestion. Certainly if there was something nefarious about this addition, I would not have expected it to have been bolded by D.C. Judd. [ 67 ] For these reasons, although I believe the bolded information in the surveillance report must have come from Det. Heitzner, I do not believe that some or all of it was put over the radio by him and that D.C. Judd did not have time to note it. Having made this finding I must say I find it very strange that Det.

Heitzner did not voice over the radio anything about the white truck, even the fact that the target vehicle parked next to it. This and the observations that followed were clearly critical to his decision to arrest Mr. Reid. His explanation that sometimes while watching the action is so fast that there is no time to put observations over the radio did not make sense in this case. Although his time may have been limited once he made the observations he alleges of a throwing motion, he had a couple of minutes before that to speak. In fact he admitted he was making observations for three minutes.

He did not call the takedown immediately after observing the throwing motion but rather after the target vehicle rolled forward and the truck squealed away. [ 68 ] However, Mr. Taraniuk never suggested to Det. Heitzner that there was no white pick-up truck, that the target vehicle did not park next to a pick-up truck or that he did not observe Mr. Reid exit the vehicle and make some sort of motion with his hand. What was challenged was whether what he saw might have been a wave. Det. Heitzner denied that what he saw was a waving motion and he would have been able to see this as his car was facing the vehicle Mr.

Reid was driving and Mr. Reid’s side would have been facing him. [ 69 ] I have considered Det. Heitzner’s credibility and already commented on the reliability of some of his evidence. I have considered one contradiction in his evidence. At trial Det. Heitzner said that he would never testify that he saw an item going into the driver’s side of the truck – that is what he believes but not what he saw. He did, however, give that evidence in chief at the preliminary inquiry on October 19, 2011. If this was an intentional misstatement I would have expected Det. Heitzner to stick to this evidence at trial.

He was under oath on both occasions. Although he clearly should have been more careful in his evidence in chief at the preliminary inquiry, I do not see this as a deliberate misstatement under oath.

[ 70 ] Although I find the circumstances surrounding the failure to radio information about what Det. Heitzner observed puzzling, I am not satisfied that he lied about this. As an experienced drug officer, if it was his intention to lie about what he observed, he could easily have come up with a better story. The one he testified to is clearly not what anyone would describe as a typical drug transaction. Furthermore, I accept Det. Heitzner’s evidence as to his experience in investigating drug transactions and what he has observed in that regard, which was not challenged.

That experience, of course, is important as it informs both Det. Heitzner’s subjective belief as well as whether the reasonable person with his experience would come to the same belief. [ 71 ] Accepting then that Det. Heitzner observed what he testified to, the first question is did he honestly and subjectively believe that he had witnessed a drug transaction. I have already answered that question in finding that Det. Heitzner saw what he believed to be a drug transaction. However, it is the position of Mr. Taraniuk that even if Det.

Heitzner subjectively believed he had grounds to arrest and search as a result of the alleged interaction between Mr. Reid and the white pick-up truck, his observations do not meet the objective "reasonable person" test required for an arrest. He argues that instead of corroborating the information he received from the C.I., Det. Heitzner utilized the tip received to colour his observation of what he alleged had occurred. He submitted that the information provided by the C.I. and Det.

Heitzner's observations, either on their own or in tandem, did not provide the necessary grounds for either detention or search. [ 72 ] In this case, the police conducted surveillance of the defendant for almost five hours and observed innocuous behaviour; attending such places as a fast food restaurant, convenience store and a housing complex. No observations of the defendant were consistent with him being in possession of a firearm. Mr. Taraniuk submitted that the alleged observations made by Det. Heitzner pertaining to the white truck are far from conclusive and that the throwing action made by Mr.

Reid can be explained in a plethora of different ways, particularly since no specific item is ever seen thrown, there is no observation made in regard to payment for the item, there is no information about the relationship between the defendant and the driver of the truck and the truck is never stopped by police and investigated to determine if a drug transaction took place. Mr. Taraniuk argued that the assertion that the interaction was a drug deal is nothing more than a hunch and based on pure speculation.

The observation is not objectively reasonable and, therefore, does not remove the possibility of innocent coincidence. As such, the C.I.'s information was not adequately corroborated by police. [ 73 ] It is Mr. Schwalm’s position that Det. Heitzner’s observations led to reasonable and probable grounds on a subjective and objective basis to arrest Mr. Reid. He submits that to witness a drug transaction confirms one of the most important facts the C.I. provided and a criminal aspect of the tip. After Det.

Heitzner witnessed what he believed to be a drug transaction, the Crown submits it was reasonable for the officer to conclude that the C.I. had been sufficiently corroborated to meet the test for reasonable and probable grounds for arrest and search. Mr. Schwalm argued that these grounds are also objectively present as a reasonable person with Det. Heitzner’s experience would reach the same conclusion. [ 74 ] The information known to Det. Heitzner when Mr. Reid drove the vehicle into the Plaza was the information he received from D.C. Reynolds.

The observations he made starting at 11:55 p.m. on July 21st, 2010, regarding the alleged interaction between the defendant and the white truck include the fact the stores were closed, it was dark save for artificial light and the fact that Mr. Reid parked right next to the white truck, the only other car in the Plaza. Although Det. Heitzner could not see if the windows of either vehicle were down and he had no idea of the relationship between Mr. Reid and the individual in truck, he believed that this was likely a meeting as otherwise why would Mr. Reid pull in next to the truck with the whole parking lot open?

Det. Heitzner testified that he formed the belief that Mr. Reid appeared to throw something and that since the object must have been small, Det. Heitzner believed that Mr. Reid had thrown drugs into this truck in order to create distance from himself, as compared to a hand to hand transaction. Although he did not see anything thrown back to Mr. Reid, Det. Heitzner said that the lack of exchange did not change his opinion of what he observed, given his experience that this occurs on occasion. He then observed Mr. Reid’s car “roll” quietly out of the parking lot and the truck “squealed away”.

This is when he ordered the high-risk vehicle stop of Mr. Reid. [ 75 ] Mr. Taraniuk argued that Det. Heitzner relied on the tip from the C.I. and that this colored his view. When asked if he relied on information from the C.I., Det. Heitzner said “absolutely” but that he also relied on the sequence of events, what he saw, the circumstances and his experience - all informed him. It was never suggested to Det. Heitzner that he targeted Mr. Reid because he is a young black man. [ 76 ] The facts as I have found them make the decision as to whether the arrest was lawful a difficult one. Having determined that Det.

Heitzner honestly believed that he had observed a drug transaction, in my view he did not have to consider what innocent explanations there might be. This was a dynamic situation and once the vehicles began to move, he had to make a quick decision. In any event I would certainly not say the there is an obvious innocent explanation that Det. Heitzner failed to consider. This is not like the observations in the Smith case. The fact that I have concluded that Det.

Heitzner honestly believed he had observed a drug transaction and considering his considerable experience in investigating drug transactions, as the court observed in Juan at para. 29 , no reasonable person put in his shoes could logically come to a conclusion other than the one held by him. I find for these reasons that there were, objectively, reasonable and probable grounds for the arrest of Mr. Reid for a drug offence. [ 77 ] However, that is not what Det. Heitzner did. He ordered the arrest of Mr. Reid for possession of a firearm.

Neither counsel challenged him on this although he did give some evidence in his evidence in chief that the officers would have all known that the reason he called for a high-risk takedown was that there was a firearm. At this point, Det. Heitzner admitted that although he believed Mr. Reid was in possession of a firearm, he did not have reasonable and probable grounds for such an arrest. When I raised this issue with counsel, Mr. Schwalm submitted that Det. Heitzner had simply misspoken and that the end result would have been the same. I agree, but that is relevant only to the s. 24(2) analysis. Mr.

Taraniuk submitted that if I found Det. Heitzner had corroborated part of the tip, I could consider the entire tip corroborated but I have difficulty with that submission given the tip was not very compelling and the C.I. was unproven. He did not challenge Mr. Schwalm’s submission that the order of arrests would have made any difference. [ 78 ] Given the admission by Det. Heitzner that he did not have reasonable and probable grounds to arrest Mr. Reid for possession of a firearm, notwithstanding the positions of counsel, I find that the initial arrest of Mr.

Reid for possession of a firearm was unlawful and there was a breach of his s. 9 Charter rights. As such, the searches were unlawful and the evidence of the drugs and the firearm was unlawfully discovered. There was a breach of Mr. Reid’s s. 8 Charter rights.

(c) Section 24(2) Analysis [79] Having found that Mr. Reid’s

section 8 and 9 Charter rights were breached, a section 24(2) analysis is necessary. (iv) The Test [80] In R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, the Supreme Court of Canada instructed judges, when faced withan application for exclusion of evidence under section 24(2) of the Charter, to assess and balance the effect of admitting the evidence onsociety’s confidence in the justice system having regard to: (

a) The seriousness of the Charter-infringing state conduct, (

b) The impact of the breach on the Charter-protected interests of the accused (admission may send the message that individualrights count for little), and (

c) Society’s interest in the adjudication of the case on its merits. [81] No overarching rule governs how these three groups of factors are to be considered. The court must consider all of thecircumstances of the case and determine whether, on balance, the admission of the evidence obtained by the Charter breach would bringthe administration of justice into disrepute: at para. 85.

As McLachlin C.J. and Charron J. noted in Grant, at para. 68: The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of,and public confidence in, the justice system. The exclusion of evidence resulting in an acquittal may provoke immediate criticism. Butsection 24(2) does not focus on immediate reaction to the individual case. Rather it looks to whether the overall repute of the justicesystem, viewed in the long-term, would be adversely affected by admission of the evidence. (

v) The Seriousness of the Charter Breach [82] This first factor requires the court to assess whether the admission of the evidence would bring the administration of justiceinto disrepute by sending a message to the public that the courts effectively condone state deviation from the rule of law, at para. 72.This analysis involves a consideration of whether or not the Charter breach was, on the one hand inadvertent or minor or, on the otherhand, showed “willful or reckless disregard for Charter rights”, at para. 74.

The court must also consider whether there were“extenuating circumstances such as the need to prevent the disappearance of evidence” and whether the police acted in good faith, atpara. 75. [83] In my view the error made by Det. Heitzner in instructing Mr. Reid’s arrest for possession of a firearm was understandable inall of the circumstances and made in good faith. I have found that he did have the right to arrest Mr. Reid for a drug offence and Mr.Taraniuk did not dispute the Crown’s submission that had he arrested Mr.

Reid first for a drug offence that the same searches would stillhave been done and the evidence would still have been found. In all of the circumstances, this breach was not serious and this factorfavours admission of the evidence. (vi) Impact on the Defendant’s Charter-Protected Interests [84] When considering the impact of the breaches on the accused person’s Charter protected interests, according to Grant, it isnecessary to evaluate the extent to which the breach actually undermined the interests protected by the right infringed.

A court shouldconsider whether the impact of the breach was “fleeting and technical” or “profoundly intrusive” and consider the effect of the breach onthe accused’s human dignity, at paras. 76, 78.

The more serious the impact on the accused’s protected interests, the greater the risk thatadmission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen,breeding public cynicism and bringing the administration of justice into disrepute, at para. 76. [85] As I have already stated, it cannot be said that the particular breaches of sections 8 and 9 that I have found had any real impacton Mr. Reid’s Charter protected rights. The searches would have unfolded in the same way had he been properly arrested first for a drugoffence.

This factor also favours admission of the evidence. (vii) Society’s Interest in the Adjudication of the Merits [86] Mr. Reid is charged with serious drug and firearm offences. Without this evidence, the Crown has no case. However, as thecourt stated in Grant, this has the potential to “cut both ways” in that the reasons for both exclusion and admission of the evidence areheightened when the stakes are high, at para. 84. [87] This is not an instance in which the Charter breach undermines the reliability of the evidence because the drugs and thefirearm existed independently of the Charter-infringing conduct.

The evidence is not conscriptive; it existed independently of any breachof the Charter. The admission of the evidence would not affect the fairness of the trial. [88] For these reasons, I find that the truth seeking function of this criminal trial would be better served by admission of theevidence. (viii) The Balancing

[89] At this stage of the analysis I must weigh the various factors. I do so understanding that there is no overarching rule governinghow the balance should be struck: Grant at para. 86. [90] All three of the Grant criteria work in favour of not excluding the evidence obtained from Mr. Reid’s person and the vehiclehe was driving. I have found that the police acted in good faith throughout. The seriousness of the police conduct falls at the lower end ofthe spectrum of misconduct. The breaches of sections 8 and 9 had very little, if any, impact on Mr. Reid’s

section 8 and 9 interests giventhe results would have been the same in the absence of the breaches. The evidence is important to the Crown’s case. [91] Balancing all of the factors, I would not in these circumstances exercise my discretion to exclude the evidence obtained fromMr. Reid’s person and the vehicle notwithstanding my findings that there was a breach of his

section 8 and 9 Charter rights. Was Mr. Reid properly cautioned and did he make a voluntary utterance? [92]

Section 10(

b) of the Charter guarantees that everyone has the right on arrest or detention to retain and instruct counselwithout delay and to be informed of that right. Mr. Taraniuk submits that Mr. Reid was never given the standard primary police cautionand as such he never had an appreciation of his jeopardy or consequences of either exercising or not exercising his rights. It is alsosubmitted that the police did not hold off on questioning Mr. Reid. Mr. Taraniuk relied on R. v. Manninen, (SCC),[1987] S.C.J. No. 41 at paragraph 23 where Lamer J., held that

section 10(

b) imposes on the police the duty to cease questioning orotherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel. Noother issues as to the voluntariness of the utterance are raised. [93] D.C. Winter testified that he read Mr. Reid his rights to counsel and the primary caution all at once, from his memo book,without stopping. He then asked Mr. Reid two questions: “Do you understand?” and “Do you wish to speak to a lawyer now?”According to D.C. Winter, Mr. Reid responded that he understood and that he did not have a lawyer. D.C.

Winter testified that he toldMr. Reid that Duty Counsel could be called for him. He did not recall a response to this suggestion. [94] All that D.C. Winter noted in his notes was “RTC” and there is no express reference to the caution. However, his evidencewas firm that he included the caution and that his note in his notebook is simply shorthand for rights to counsel and caution. I accept thatevidence. At the time Mr. Reid was cautioned, he was under control, not resisting and there is no reason to think that D.C. Winter wouldnot have followed his usual practice. Mr.

Reid did not testify and so I have no evidence to the contrary. [95] Because D.C. Winter made his note of what Mr. Reid is alleged to have said much later, there is a live issue as to what exactlyMr. Reid said but that is an issue for the trial. The remaining issue that must be decided with respect to voluntariness is whether or notthe police held off questioning Mr. Reid. [96] D.C. Winter admitted that he was with Mr. Reid for about 20 minutes before turning him over to a uniformed officer forescort back to the station. He admitted that he did not recall what his conversation with Mr.

Reid was although he testified that he madeno threats, promises or inducements to Mr. Reid and that he did not recall asking him any questions about the marijuana or crackcocaine. He admitted that he did not note everything he said in his notes and that he could not recall if Mr. Reid said more or not. He didnot record the utterances in his notes until his next shift the following evening. [97] D.C. Winter testified in cross-examination that he had no recall of any conversation with Mr. Reid apart from the two answershe noted in his memo book.

He was then taken to his evidence at the preliminary inquiry on October 19, 2011 where he admitted that hehad a short conversation with Mr. Reid while they were waiting for a uniformed officer to arrive. I have already mentioned a concernwith some of the evidence of D.C. Winter. However, on this issue, I find it understandable that D.C. Winter would have no recollectionnow of a conversation with Mr. Reid and yet at the preliminary inquiry, he did. The main problem is that he made no mention in hisnotes of, for example, “and unrelated conversation with accused”. The fact that there was some conversation given Mr.

Reid wascompliant and the wait was long is not surprising. [98] The real issue is whether or not the utterance was as a result of a failure of the police to hold off questioning Mr. Reid. Iaccept D.C. Winter’s evidence that he did not proceed to question Mr. Reid. Although it is possible that something that was said by D.C.Winter prompted what on its face appears to be an exculpatory statement, I do not believe it resulted from improper questioning. On theevidence of D.C. Winter, the utterance may have been prompted by Mr.

Reid observing the officers searching the car. [99] There were no other issues raised that could impact on the voluntariness of this utterance or its admissibility. Accordingly, forthe reasons stated, I find that the Crown has proven beyond a reasonable doubt that the utterance was given voluntarily. It may betendered by the Crown as part of its case. SPIES J. Date: February 27, 2013