) ) HER MAJESTY THE QUEEN ) ) ) David Rows, for the Crown ) ) - v. -, 2013 ONSC 2346

CITATION : Her Majesty the Queen. v. Pocock, 2013 ONSC 2346 COURT FILE NO.: 11-175 DATE: May 3, 2013 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) ) ) David Rows, for the Crown ) ) - and - ) ) GORDON POCOCK ) ) ) ) Edward H. Royle, for the accused ))) HEARD: March 18,19,20 and 21, 2013 BRYANT J. : REASONS FOR JUDGMENT I Introduction [ 1 ] Mr. Pocock (“the Applicant”) lived in a three-storey rooming house which had a number of units; each unit had a separate outside entrance, located at different locations of the building.

On November 16, 2011, the Applicant telephoned 911 and reported that he had been attacked by a person named Dexter, who lived in his unit. He told the 911 operator that he stabbed Dexter. The police were dispatched to the Applicant’s rooming house. [ 2 ] The Applicant’s Notice of Application alleges that the police infringed the Applicant’s rights under s. 7 and s. 10(

b) of the Charter of Rights and Freedoms , and further alleges that all utterances or statements made by the Applicant to persons in authority were involuntary. [ 3 ] The Application states that the police knew that Mr. Pocock was the person who made the 911 call, and told the operator that he had stabbed Dexter. Counsel submits that the police began questioning the accused before advising him of his rights under s. 10(

b) of the Charter .

Counsel further submits that these statements, and all subsequent statements, contravened the accused’s rights and should be excluded pursuant to s. 24(2) of the Charter because they were tainted by the initial breach of s. 10(b) . [ 4 ] Counsel for the Applicant submits that videotaping the strip search, and the presence of Detective (“Det.”) Sussex during the strip search, created an atmosphere of oppression which rendered subsequent statements involuntary. [ 5 ] Counsel for the Crown and defense agreed that the court should hold a blended voir dire to determine voluntariness and the Charter issues.

The Crown must prove beyond a reasonable doubt that the accused’s statements made to the persons in authority were voluntary. The Applicant must prove a Charter breach and that the evidence should be excluded pursuant to s. 24(2) of the Charter on the balance of probabilities standard.

[ 6 ] The Crown called as witnesses, the police officers who arrested the Applicant, transported him to the police station, took him before the cell sergeant, and interviewed him. Cadets who escorted the Applicant to the interview room were also called as witnesses. The Applicant did not testify or call any witnesses. II The Strip Search (

a) Position of the Parties i. Position of the Applicant [ 7 ] Counsel for the Applicant asserts that the conduct of the police in strip searching the accused during the interview process, and in particular, videotaping the strip search, constituted a gross intrusion on the dignity and privacy of the Applicant, and thereby rendered all statements made afterwards involuntary on the basis of the oppression doctrine. [ 8 ] Defense counsel states that the videotaped record may be shown in the future to unspecified persons in unspecified circumstances. Counsel argues: a.

A strip search is a serious intrusion on the dignity and privacy of an individual; b. The circumstances in which a strip search is reasonable are clearly circumscribed in the case law; c. A strip search that is videotaped, and in particular, where the videotaping is against the will of the detainee, is a serious violation of the detainee’s privacy interest; d. A strip search carried out without authority or in an unreasonable manner can result in a stay of proceedings; and, e.

The breach of a Charter right, particularly one involving a violation of the dignity or privacy of an accused person, can be considered to be oppressive, thus rendering a statement involuntary. ii. Position of the Crown [ 9 ] Crown counsel contends that the police conduct was reasonable in the circumstances of this case. The police were conducting a murder investigation in which the accused person alleged that he was attacked by the deceased.

Crown counsel submits that the strip search was conducted to gather physical evidence (the Applicant’s clothing) and to document injuries or the lack of injuries suffered by the accused as a result of the alleged assault of the Applicant by Dexter. [ 10 ] Crown counsel also states that no evidence was gathered from the strip search and notes that a stay is not being sought by the Applicant. Accordingly, the Crown infers that the Applicant’s complaint is that videotaping the strip search was oppressive which rendered the subsequent statements involuntary.

Crown counsel submits that the videotape is admissible and was made to establish an accurate record of the search and the subsequent interview by police officers. Counsel further submits that the police complied with the Charter or, in the alternative, if the court determines there was a breach, the statements are admissible under s. 24(2) of the Charter . (

b) Analysis and Decision (

i) The Strip Search [ 11 ] Det. Sussex accompanied the accused from a dry cell to the interview room located at LPS headquarters. All conversations on route were recorded by a hand-held audio recorder. The accused was informed by Det. Sussex that the room was audio/video recorded. The Applicant was videotaped while present in the interview room. He confirmed that he was under arrest for murder and that he had spoken to a lawyer. Det. Sussex informed the accused that anything he said could be used in court. Det.

Sussex misstated the secondary caution; however, the accused acknowledged that he had been treated fairly by the other officers. [ 12 ] Det. Sussex introduced the accused to Det. Brook, a forensic police officer. Det. Brook informed the accused that he would take photographs of him, seize his clothing, make observations and use wet swabs to go over his hands incidental to his arrest. The

detective asked the accused if he had any questions and the accused responded, “no”. Det. Brook then instructed the accused where hewas required to stand for the photographs. [13] The accused asked Det. Brook if he had any choice about being photographed and the detective responded “no”. Det. Sussexinformed the accused that he was allowed to speak and if he had any questions he would answer them if he could. The accusedresponded that he did not have questions. The accused said he did not realize the victim “was hurt that badly”.

He then told Det.Sussex: My lawyer said I’m not supposed to say anything, so I shouldn’t. But I mean, the guy had been attacking me and attacked me again. Det. Sussex responded: Well, we can talk further. [14] Det. Brook requested the accused to sequentially remove his articles of clothing in order to photograph him. Det. Brookcommenced a strip search of the Applicant and requested him to put his clothing in a paper bag. The officer took photographs of the faceand hands of the detainee. The accused asked Det. Brook if he could see any markings or scratches.

The accused was then asked to puthis pants into the paper bag to which the accused said: Pocock: This is one of those moments where your mother says make sure you always wear clean underwear. Brook: That’s right, this is one of the reasons. (pause) Okay, I’m gonna ask you to put your underwear and socks into that bag. [15] Mr. Pocock asked if there was something for him to wear. Det. Brook told him there was a jumper to put on after he wasfinished with the search. The following exchange took place: Pocock: And I can, can I pull the jumper a little bit closer? Sussex: I’ll, I’ll touch it.

Pocock: I’m just a bit uncomfortable being naked. At least if it’s close by I can take it off and then just put that on. Sussex: Well, you’re gonna have to be patient, okay. Just … Pocock: Do you have to take pictures? Brook: That depends, whether I see any marks or not. Pocock: Oh, alright. Okay. Brook: I mean … Pocock: I don’t have a choice, so. Brook: This is somewhat to, to cover us, that you don’t have injuries … Pocock: Socks as well? Brook: Yeah. Pocock: Okay. I do have any injury on this toe. [16] The accused was asked about, and visually inspected for, any other injuries.

The accused responded that he did not believe hehad any other injuries. Det. Brook then gave Mr. Pocock the jumpsuit and he responded: “Thank you, ‘cause I am feeling veryuncomfortable.” Det. Sussex asked the accused about a razor rash on his throat. The accused then pointed out an injury to his knuckle toDet. Sussex. [17] After Det. Brook completed the strip search, Det. Sussex engaged the accused in conversation from approximately 12:33 a.m.to 2:25 a.m. [18] Det. Brook conducted the strip search in the interview room at the police station. The Applicant was videotaped and the doorwas closed.

It was understandable that the Applicant felt uncomfortable about removing his clothes, but he was compliant and no forcewas needed or applied. The strip search was conducted in a polite and professional manner. Neither officer raised their voices orthreatened the accused during the strip search or the interview. The search was not carried out abusively or for the purpose ofhumiliating or punishing Mr. Pocock. (ii) The Validity of the Strip Search [19] Counsel for the Crown and defense agree that the decision of the Supreme Court of Canada in R. v.

Golden, 2001 SCC 83, [2001] 3 S.C.R. 679 is the leading Canadian authority on strip searches by police officers of a person under arrest. Counsel forthe Applicant relies upon Golden, at paras. 95, 99, and the following authorities in support of the Applicant’s position: R. v. Agostinelli,[2002] O.J. No. 5008 (C.J.); and R. v. Ross, [1984] O.J. No. 905 (Co. Ct. (Gen. Sess.). These authorities held that a strip search maycontravene s. 8 of the Charter in some circumstances.

For example, in Golden, the police conducted a rectal search in a public place in amanner that may have jeopardized the detainee’s health and safety. In Agostinelli, the police conducted an unreasonable strip search of

an impaired driver in a non-confined or non-private area of the police station where he could be observed by females. In Ross , the police made the accused take off all his clothes and searched him in a vehicle in a parking lot rather than drive him to the nearby police station to be searched. [ 20 ] It is my view that the searches the police conducted in these three cases are markedly different from the strip search conducted by Det. Brook. There are no factual similarities between the conduct of the police officers in those cases cited by defense counsel and the conduct of Det. Brook and Det.

Sussex in the subject case during the strip search. [ 21 ] The purpose for conducting the strip search was to collect the accused’s clothing for examination and to photograph the body of the accused to identify injuries, wounds and bruises, or the lack thereof, as a result of his alleged altercation with his deceased neighbour.

Thus, the search was related to the investigation. [ 22 ] Counsel for the Applicant in his written submissions “concedes that the police were entitled to seize the accused’s clothing and to conduct a strip search” but that another police officer or a cadet should have been present to witness the search or to assist Det. Brook conduct the strip search. (iii) Oppression and the Presence of Det. Sussex [ 23 ] The Notice of Application does not allege the strip search was a violation of s. 8 of the Charter .

During the voir dire , counsel for the Applicant raised a concern about playing the portion of the videotape showing the strip search. Crown and defense counsel agreed to play only the audio portion of the recording for this segment of the accused’s detention. The videotape disc was filed as an exhibit on the voir dire . [ 24 ] It is my understanding that the Applicant does not allege that Det. Brook, the forensic officer, improperly performed his duties when he told the Applicant to remove his articles of clothing, directed him to place each item of clothing into a paper bag and photographed him.

Rather, counsel for the Applicant submits that videotaping the strip search and Det. Sussex’s presence during the strip search constituted oppressive circumstances thereby rendering the statement made to Det. Sussex involuntary. [ 25 ] Counsel for the Applicant further submits that Mr. Pocock “expressed his objection to the process and his discomfort to the procedure” in support of the argument that videotaping the search rendered the subsequent statements involuntary. The record shows that the Applicant asked if he had a choice to refuse the search and was told no. The record also shows that Mr.

Pocock said he was uncomfortable about being naked. [ 26 ] In R. v. Golden , the Supreme Court held that searches of a person incident to arrest are an established exception to the general rule that warrantless searches are prima facie unreasonable ( Golden at paras. 84, 87 ). The Supreme Court reaffirmed the following criteria for the common law power of search incident to arrest, at para. 75:

(1) The police have the power to conduct a search at common law but are not under a duty to exercise the power;

(2) The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of a weapon or evidence; and

(3) The search must not be conducted in an abusive fashion. A search that does not meet these three criteria would be unreasonable under s. 8 of the Charter . [ 27 ] The purpose of the search and seizure was to collect the clothing that the Applicant was wearing at the time of the stabbing, to make observations of any injuries the accused suffered and to photograph injuries in furtherance of the murder investigation. The search was not conducted in an abusive manner. The police conducted a visual inspection without physical contact.

The camera angle was static during the strip search and did not focus on the genitalia area. I find that the Crown has satisfied the Golden criteria for a search incident to arrest. [ 28 ] The strip search commenced when the Applicant removed his sweat shirt at 12:27:25 a.m. and ended approximately four minutes later at 12:31:15 when the accused put on the jump suit. The Applicant removed his underwear and socks at 12:29:51, and presents an injury to his feet about which the police make inquiries and appear to take photos.

Thus the Applicant was naked from 12:29:51 to 12:31:15, a period one and one-half minutes, a portion of which was devoted to the accused’s foot.

I find the accused’s nakedness was minimized by the speed of the officers’ conduct. [ 29 ] The Supreme Court in Golden held that the guidelines in P.A.C.E. provide a framework for police in deciding how best to conduct a strip search incident to arrest in compliance with the Charter : The Court stated at para. 101: The following questions, which draw upon the common law principles as well as the statutory requirements set out in the English legislation, provide a framework for the police in deciding how best to conduct a strip search incident to arrest in compliance with the Charter : 1.

Can the strip search be conducted at the police station and, if not, why not? 2. Will the strip search be conducted in a manner that ensures the health and safety of all involved?

3. Will the strip search be authorized by a police officer acting in a supervisory capacity? 4. Has it been ensured that the police officer(

s) carrying out the strip search are of the same gender as the individual beingsearched? 5. Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances? 6. What is the minimum of force necessary to conduct the strip search? 7. Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search canobserve the search? 8. Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressedat any one time? 9.

Will the strip search involve only a visual inspection of the arrestee's genital and anal areas without any physical contact? 10. If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detaineebe given the option of removing the object himself or of having the object removed by a trained medical professional? 11. Will a proper record be kept of the reasons for and the manner in which the strip search was conducted? [30] Except for item 10, which is not applicable, the strip search conducted by Det.

Brook was done in accordance with guidelines1, 2, 3, 4, 5, 8 (in part), 9, 10, and 11. Det. Sussex testified that one or more members of the assigned investigators would observe thestrip search and interview in the monitoring room. [31] In R. v. Nikolovski, (SCC), [1996] 3 S.C.R. 1197, the Supreme Court of Canada dealt with the admissibility ofa surveillance videotape in the context of identification evidence. The Court held that a fixed videotape is an unbiased recorder of eventsand does not suffer from the frailties of human observation, recollection and communication.

Cory J. stated at para. 21: The video camera on the other hand is never subject to stress. Through tumultuous events it continues to record accurately anddispassionately all that comes before it. Although silent, it remains a constant, unbiased witness with instant and total recall of all that itobserved. The trier of fact may review the evidence of this silent witness as often as desired. The tape may be stopped and studied at acritical juncture. In my view, Justice Cory’s comments apply to the videotaped strip search of Mr.

Pocock. [32] The P.A.C.E. guidelines provide that “a proper record be kept of the reasons or the manner in which the strip search wasconducted” but it does not specify the method of recording. The police risk criticism whichever way they proceed. If the police do notvideotape the search, an accused could allege she or he was improperly assaulted by the officer and argue that the officer should havevideotaped the strip search.[1] In the subject case, counsel for the Applicant submits that the police improperly videotaped his clientduring the strip search.

The issue of privacy and dignity first arose during the voir dire and I thought the matter had been resolved byplaying the audio recording only. It was necessary to review the videotape of the strip search to closely observe if there had been anytouching and the length of period the accused was naked. An audio tape would be inferior for the resolution of some issues that couldarise in a strip search. [33] In R. v. Moore-McFarlane (2001), (ON CA), 56 O.R. (3d) 737 (C.A.), the Ontario Court of Appealconsidered the method of recording statements made to the police while in custody.

Charron J.A. stated that the Crown has the onus ofestablishing a sufficient record of the interaction between the suspect and the police which could be readily satisfied by the use of audio,or better still, video recording (Moore-McFarlane, para. 65). It is difficult to fault the police for using a method for taking statementswhich was strongly recommended by the Court of Appeal.

The privacy concerns presented by counsel may be addressed on a motion tothe trial judge, like was done on the voir dire unless the strip search becomes an issue at trial. (iv) The Presence of Detective Sussex [34] I briefly deal with the issue of Det. Sussex’s presence at the strip search. Counsel for the Applicant argues that there was noneed to conduct the strip search in the interview room or to confirm that the accused had been informed of his right to counsel and hadexercised that right unless Det.

Sussex intended to interview the accused. [35] The police officers intended to videotape the strip search and presumably chose the interview room because it had thenecessary recording capability. Det. Sussex testified that he did not intend to interview the accused but when the accused spoke with himhe carried on the discussion. [36] Mr. Pocock told the officers his lawyer told him he should not speak with them. Mr. Pocock ignored the advice and continuedanswering questions. The Applicant’s willingness to speak to the police officers commenced when he responded to P.C.

Merklinger’sarrest and continued to speak with Det. Brook, Det. Sussex and Det. Newton. [37] In R. Oickle, 2000 SCC 38 , [2000] 2 S.C.R. 3, the Supreme Court recognized that oppressive circumstances mayproduce an involuntary confession. In this case, there was no evidence the accused was deprived of sleep or clothing (except for a briefperiod during the strip search). There was also an absence of evidence of oppressive circumstances, such as aggressive and prolongedquestioning.

[ 38 ] The accused elected not to call any evidence. I am not prepared to speculate that Det. Sussex gained a psychological advantage as a result of being present for the strip search, in the absence of any evidence on the issue. The Applicant told Det. Sussex that he had been treated fairly by the police. Similarly, Mr. Pocock told Det. Newton that the police “have been treating him very well.” These statements by the Applicant undermine the submission that police officers created oppressive circumstances rendering the accused’s statement inadmissible. [ 39 ] I find that the presence of Det.

Sussex during the strip search was not oppressive and the Applicant’s statement to Det. Sussex was voluntary. III The Applicant’s Conversation with P.C. Churney [ 40 ] Counsel for the Applicant submits that officer Churney’s failure to have an accurate and complete recording of his conversation with the accused renders his evidence unreliable and inadmissible. Of ficer Churney is a police officer. He was placed in a cell next to the accused. Counsel for the Crown advised that he does not intend to call Officer Churney as a witness at trial. Accordingly, it is unnecessary to rule on the admissibility of P.C.

Churney’s evidence. IV Utterances Made by the Applicant (

a) Position of the Parties (

i) Position of the Applicant [ 41 ] Counsel for the Applicant submits that Mr. Pocock should have been informed of his s. 10(

b) right to counsel and cautioned “prior to any questioning being conducted.” Counsel argues that Sgt. Berg and other officers knew the 911 caller stabbed the victim and therefore he was arrestable. Counsel submits that the “excuse for not arresting and cautioning the accused was not credible”. Counsel submits that Sgt. Berg’s failure to inform the accused of his s. 10(

b) rights rendered the statement inadmissible pursuant to s. 24(2) of the Charter . Counsel further submits that the absence of a proper caution by Sgt. Berg and the absence of a secondary caution by Det. Sussex rendered all statements involuntary and any statements made thereafter were tainted and inadmissible. (ii) Position of the Crown [ 42 ] Counsel for the Crown submits that the two general questions posed by Sgt. Berg represented a preliminary or exploratory investigation and the accused was not detained. P.C. Merklinger informed the accused that he was being detained for a weapons investigation.

The accused responded: “I know, I stabbed him”. P.C. Merklinger immediately arrested the accused for assault with a weapon and turned him over to P.C. Hellyer who gave the accused his rights to counsel and a caution. Crown counsel argues that the accused was given his s. 10(

b) rights without delay. Counsel further submits that the accused received his rights to counsel and the primary caution on two occasions by P.C. Hellyer prior to the interview with Det. Sussex. (

b) The Factual Context [ 43 ] Mr. Pocock’s telephone conversation with the 911 operator triggered the police investigation of an alleged stabbing at 429 Simcoe St. near the downtown center of London. This conversation was audio recorded and a seven page transcript of the conversation was filed as an exhibit. Mr. Pocock reported that he lived in a boarding house and that another boarder named Dexter had attacked him and thrown him to the floor. Mr. Pocock told the operator that Dexter came back to his room and he “stabbed him a couple times” in the back. He said Dexter left his room “probably hurt”.

He then told the operator: “I am scared”. [ 44 ] This information was provided to the officers over the radio and electronically to dispatch them to the scene. This dispatch informed the officers of the location and nature of the incident, and that the caller had stabbed his roommate Dexter. Neither the name nor a description of the 911 caller was provided to the officers. Initially the location of the callers unit was not given to the 911 operator. [ 45 ] S.Sgt. Sutherland and Sgt. Merrimen were the first responding officers to arrive at 429 Simcoe St. to investigate the reported stabbing.

They arrived in an unmarked police vehicle within two minutes of receiving the dispatch. The other responding officers arrived in marked police vehicles. P.C. Morton arrived next and Sgt. Berg and Sgt. McGugan arrived shortly after P.C. Morton. P.C. Merklinger arrived next and P.C. Hellyer and his coach officer P.C. Pike were the last officers to arrive at the scene. P.C. Pike described 429 Simcoe St. as a three-storey walk-up. [ 46 ] S.Sgt. Sutherland said the building appeared to be a boarding house. She stated that some resident(

s) came outdoors to advise the police that their unit was not involved in the incident. Other resident(

s) informed the officers of the locations of the entrances to other

units. Different officers went to different exterior entrances. One officer entered a door leading to a basement unit while S.Sgt. Sutherland spoke to a person exiting from one of the other units. [ 47 ] Sgt. Berg and the other officers on site did not know which exterior door would lead to the apartment where the alleged stabbing occurred. The officers were standing outside the building trying to determine which unit they needed to enter to find the victim of the stabbing. Sgt. Berg contacted the dispatcher by radio and requested additional information from the 911 caller as to the location of the unit.

The officers subsequently learned the location of the unit. [ 48 ] S.Sgt. Sutherland, Sgt. Berg, P.C. Minkinger, P.C. Hellyer and P.C. Pike interacted with Mr. Pollock at 429 Simcoe St. P.C. Hellyer, Sgt. Hadley (the cell sergeant), cadets, Det. Brook, Det. Sussex and Det. Newton had contact with Mr. Pocock at London Police headquarters. (

i) S.Sgt. Sutherland [ 49 ] S.Sgt. Sutherland testified that the 911 operator advised that the entrance for unit 5 was on the west side of the building. She observed steps leading up to an exterior door on the west side of the building and said a person holding a cell phone came to the door and appeared to be speaking with the 911 operator. It was her immediate concern to “get inside and see what was going on.” [ 50 ] S.Sgt. Sutherland said the person who answered the door was a person of interest.

In cross-examination, she acknowledged that she had written in her notes that the individual was a witness but also referred to him as a suspect. She said that she did not know if the person who opened the door was the same person who had informed the dispatcher that he had stabbed his roommate. It was her evidence that she did not think the person exiting unit 5 was the wanted party or an arrestable party based on her knowledge at that time. [ 51 ] Officer Sutherland agreed in cross-examination that she assumed a measure of control over this person by “turning him over” to Sgt. Berg by motioning to Sgt.

Berg who was standing near the driveway. She said that she never spoke to the accused or gave him any instructions. Officer Sutherland said that Sgt. Merrimen, Sgt. McGugan and P.C. Mortorn went up the stairs to unit 5. These officers found the victim in the unit where Mr. Pocock resided. (ii) Sgt. Berg [ 52 ] Sgt. Berg received information of a stabbing at 9:04 a.m. from a radio dispatch and an electronic dispatch to his computer. He arrived at the scene one or two minutes later. He said S.Sgt. Sutherland, Sgt. Merrimen and P.C. Morton were on site when he arrived and that P.C.

Merklinger arrived a short time later. [ 53 ] Sgt. Berg was standing in front of the boarding house when he first saw an individual now known to him as Mr. Pocock. The other officers ahead of him were trying to enter the unit as a person was trying to leave the building. Sgt. Berg informed S.Sgt. Sutherland that he would stay behind and speak with the individual who exited unit 5. [ 54 ] Sgt. Berg said he took no physical control over Mr. Pocock and no one instructed him to investigate this person or to control him. Sgt. Berg did not recall seeing Mr. Pocock holding a cell phone. Sgt. Berg and Mr.

Pocock were standing outside, adjacent to the exterior stairs leading to the outside door of unit 5. Sgt. Berg asked Mr. Pocock: Q. What happened? A. I don’t know. I stabbed him, it was self-defense. Q. How do you think he is doing? A. Not good. He didn’t look good. [ 55 ] As a result of receiving these answers, Sgt. Berg believed this person likely committed the offence of assault with a weapon and he had reasonable grounds to arrest Mr. Pocock. He did not ask Mr. Pocock any further questions or speak to him. [ 56 ] Sgt. Berg directed P.C. Merklinger to arrest the accused for assault with a weapon.

He observed P.C. Merklinger handcuff Mr. Pocock to the rear. He said the accused did not appear intoxicated. Sgt. Berg’s interaction with Mr. Pocock lasted approximately one minute. Sgt. Berg entered unit 5. [ 57 ] As noted, the radio and electronic dispatch as recorded by P.C. Pike in his notebook did not contain full details of the events underlying the 911 call. Counsel for the defense cross-examined Sgt. Berg on several different factual scenarios to suggest he knew that the person who exited the door was the same person who made the 911 call and admitted stabbing the deceased. Sgt.

Berg maintained that he did not know if the person who walked out of unit 5 was the person who committed an assault. (iii) P.C. Merklinger [ 58 ] P.C. Merklinger was dispatched to attend 429 Simcoe St. at 9:07 p.m. While at the scene he learned that a male had stabbed his roommate. S.Sgt. Sutherland, Sgt. Merrimen, Sgt. Berg and P.C. Morton were present at the scene when he arrived. [ 59 ] P.C. Merklinger said the officers did not know which unit was involved, so he covered the northwest entrance and other officers went to a southwest entrance.

He was subsequently advised that the southwest entrance was the target entrance and he joined officers Sutherland, Berg and Morton at that location. P.C. Merklinger estimated he had been at the scene for 2 or 3 minutes. He testified

that the other officers were either just outside the exterior door of unit 5 or in the process of going through the door to enter unit 5. P.C. Merklinger said the Applicant was standing outside the exterior door of unit 5, smoking a cigarette and holding an open cell phone. He was unsure if the Applicant had made the 911 call or if he was someone who ran outside from the unit. P.C. Merklinger was standing approximately three feet from Sgt. Berg and the Applicant, who were standing near each other. Sgt. Berg directed P.C. Merklinger to arrest the Applicant. [ 60 ] P.C.

Merklinger told the accused that he was being detained for a weapons investigation. The accused responded: “I know, I stabbed him.” The officer then said: “you are under arrest for assault with a weapon”. It was P.C. Merklinger’s evidence that this exchange lasted 5 seconds. [ 61 ] P.C. Merklinger handcuffed the accused to the rear and searched him for weapons. Sgt. Berg was not present when he searched Mr. Pocock. P.C. Merklinger estimated it took one minute to handcuff and search the accused. The officer could smell alcohol on the accused’s breath but stated that he did not appear intoxicated. [ 62 ] P.C.

Merklinger transferred custody and control of Mr. Pocock to P.C. Hellyer. (iv) P.C. Hellyer and P.C. Pike [ 63 ] P.C. Hellyer and P.C. Pike were in a marked police cruiser in south London when they received a weapons dispatch at 9:07 p.m. for 429 Simcoe St. P.C. Pike testified that the radio and electronic dispatch (call notes) stated: “the complainant’s [Mr. Pocock] room-mate Dexter, unknown sir name, approximately 50 years old threw the complainant down and the complainant picked up a knife, stabbed him several times.” They arrived at the scene around 9:12 p.m. [ 64 ] P.C.

Hellyer parked the police cruiser on the street and walked to and down the poorly lit driveway of the boarding house. He observed Sgt. Berg and P.C. Merklinger and an individual without shoes and in handcuffs and a cell phone on the ground at his feet. They were standing near exterior stairs leading to a door of the rooming house. E.M.S. arrived at the scene. P.C. Hellyer did not know the identity of the person in handcuffs, but learned from P.C. Merklinger that the accused was under arrest for assault with a weapon. P.C. Hellyer took custody of Mr. Pocock from P.C. Merklinger at 9:14 p.m. Sgt. Berg and P.C.

Merklinger left to go into the building. [ 65 ] P.C. Pike went into the boarding house to determine the condition of the victim. P.C. Hellyer testified he did not have any conversation with the accused between 9:14 and 9:18 p.m. P.C. Pike returned at 9:18 p.m. and informed P.C. Hellyer that the injuries to the victim were serious and instructed him to re-arrest the accused for attempt murder and to give the accused his right to counsel and to caution him. He further instructed P.C. Hellyer to record any utterances made by the accused, but not to ask him any questions. [ 66 ] P.C.

Hellyer re-arrested the accused for attempt murder and read the rights to counsel to the accused from his duty book as follows: I’m arresting you for attempted murder. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged with an offence you may apply to the Ontario legal aid plan for assistance. 1-800-285-0451 is a number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now.

Do you understand? I would have got a reply. Do you wish to call a lawyer now? The accused indicated he did not wish to contact a lawyer. [ 67 ] P.C. Hellyer gave the accused the following caution: You are charged or you will be charged with attempted murder. You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you understand? Do you wish to say anything in answer to the charge? [ 68 ] Mr. Pocock responded that he understood the first question but responded to the second question as follows: “No not at this time. He attacked me, that’s it.

It’s kind of a shame. I was the guy who called 911.” [ 69 ] P.C. Hellyer testified that the accused was cooperative and calm. He conducted a further search of the accused prior to placing him into the rear of the police cruiser. P.C. Pike assisted the paramedics to move the victim from the residence to the ambulance. P.C. Pike returned to the police cruiser around 9:39 p.m. He said P.C. Hellyer was in the driver’s seat and Mr. Pocock was in the rear seat behind a Plexiglas screen. [ 70 ] P.C. Hellyer and P.C. Pike left the scene at 9:42 p.m. During transportation to the police station, Officer Hellyer asked Mr.

Pocock to confirm whether his middle name was Patrick for the purpose of identification. They arrived at the police station at 9:48 p.m. P.C. Hellyer did a further search of the accused and noted a two-inch long black/red stain that appeared to be blood on his trousers. Mr. Pocock was booked into the cells at 9:55 p.m. [ 71 ] While booking in the accused at 9:57 p.m., Sgt. Hadley learned that the victim had died. He instructed P.C. Hellyer to re-arrest the accused for murder and to provide him his rights to counsel and to caution him. P.C. Hellyer did so.

The accused requested to speak with London lawyer Antin Jaremchuk. The accused was taken to a private room at 10:07 p.m. to speak with Mr. Jaremchuk. (

c) Utterances - Analysis and Decision (

i) Utterances made to Sgt. Berg

[72] The preliminary issue is whether Mr. Pocock was detained within the meaning of s. 10(

b) of the Charter prior to making hisstatement to Sgt. Berg? The court must determine whether a reasonable person in Mr. Pocock’s position would have concluded that hisright to choose how to interact with Sgt. Berg had been removed (R. v. Grant 2009 SCC 32 , [2009] S.C.J. 32, paras. 45,46). [73] Sgt. Berg and the other officers received a brief dispatch that there was a stabbing at a boarding house located at 429 SimcoeSt. He and the other officers on site did not know the unit to enter. The police officers spoke with other residents of the boarding housetrying to determine the correct entrance.

As a result, they were unable to assist a person who allegedly had been stabbed. [74] S.Sgt. Sutherland and three other officers were entering unit 5 as the Applicant was exiting the residence. Sgt. Berg was behindthe other officers and stayed behind to speak with the person who came out of the exterior door of unit 5. [75] S.Sgt. Sutherland did not speak with the Applicant or touch the Applicant as they passed each other at the entrance to unit 5. Itwas her evidence that she motioned to Sgt. Berg to deal with the Applicant. I find that S.Sgt. Sutherland did not detain or arrest theaccused. [76] Sgt.

Berg first saw the accused coming out the exterior door of the unit. He received no instructions from another officer toinvestigate this person or control him. Sgt. Berg did not know the name of the 911 caller or receive a description of the caller. He did notknow how many people lived in unit 5. He did not know if someone had been wounded. He believed that the person exiting the unitpossibly had some involvement as a witness or he was the person who had allegedly stabbed Dexter. Sgt.

Berg was skillfully cross-examined on the theory that he should have simply asked the Applicant if he made the 911 call. [77] The Applicant and Sgt. Berg were standing outside near to the exterior steps leading to unit 5 and near to each other. Mr.Pocock had not spoken with any other police officers prior to Sgt. Berg. This was Sgt. Berg’s only interaction with Mr. Pocock and itwas Mr. Pocock’s initial encounter with a police officer in relation to this incident. [78] Sgt. Berg did not touch or arrest the Applicant while they were standing outside the entrance to unit 5. Sgt.

Berg took nophysical control over the accused. Sgt. Berg made a general inquiry as to what happened inside the unit: “What happened?” The accusedresponded “I don’t know. I stabbed him, it was self-defense.” The accused’s answer was both inculpatory (“I stabbed him”) andexculpatory (“It was self-defense”). Det. Berg then asked the accused: “How do you think he is doing?” The accused responded: “Notgood. He did not look good.” Sgt. Berg did not ask Mr. Pocock any further questions. [79] Sgt. Berg directed P.C. Merklinger to arrest the accused for assault with a weapon.

This interaction and verbal exchangebetween Sgt. Berg and Mr. Pocock occurred around 9:09 or 9:10 p.m. Sgt. Berg’s dealing with the accused took approximately oneminute. Sgt. Berg had no further contact with the accused. He observed P.C. Merklinger arrest the accused and handcuff him to the rear. [80] I accept Sgt. Berg’s evidence that he did not know the identity of the 911 caller. He did not know if Mr. Pocock stabbedDexter. The purpose of Sgt. Berg’s first question was to determine Mr. Pocock’s involvement in the incident either as a witness or theperson who stabbed the victim.

The officer said he did not have reasonable and probable grounds to arrest Mr. Pocock prior to asking thequestions. Sgt. Berg testified that even if the Applicant had informed him that he made a 911 call he would not have grounds to arrest theaccused because other persons in the building could have made a 911 telephone call. Sgt. Berg said he needed to know if someone hadbeen injured and if yes, what Mr. Pocock’s involvement in the incident was. Sgt. Berg learned Mr. Pocock’s involvement only when headmitted his involvement in the stabbing. [81] In R. v.

Grant 2009 SCC 32 , [2009] S.C.J. 32, at para. 44, the Supreme Court summarized the law of detention: 1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical orpsychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with therestrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but tocomply. 2.

In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. Todetermine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the stateof the liberty of choice, the court may consider, inter alia, the following factors: 1.

The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police wereproviding general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out theindividual for focussed investigation. 2. The nature of the police conduct, including the language used; the use of physical contact; the place where the interactionoccurred; the presence of others; and the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status;level of sophistication. [82] The accused was a white middle aged male with average or above average intelligence. He was able to understand thequestions asked by Sgt. Berg, Det. Sussex and Det. Newton and he was able to understand information he received as to his Charter rightto counsel from P.C. Hellyer. For example, he declined the opportunity to speak to counsel when informed of his s. 10(

b) right to counselfor the attempt murder charge but chose to speak to counsel when he was re-arrested for murder. [83] Mr. Pocock was not under a legal obligation to respond to the two questions asked by Sgt. Berg. A reasonable person would not

find that Mr. Pocock had no choice but to answer the questions asked by Sgt. Berg. Mr. Pocock was not physically restrained prior tobeing questioned by Sgt. Berg. Mr. Pocock was subsequently detained by Sgt. Berg as a result of his answers to the two questions. [84] I find that this was not a case of a physical restraint or compulsion imposed by law. This was not a forced interrogation. Therewas no legal constraint of the Applicant’s liberty interest by a physical or psychological restraint prior to answering Sgt. Berg’squestions. There was no evidence that the accused believed he was psychologically detained.

The Applicant has not satisfied the court ona balance of probabilities that he was detained by Sgt. Berg prior to being asked the two questions. [85] Sgt. Berg did not threaten the accused or make any promises. There was no evidence of police trickery that unfairly denied theaccused’s right to silence. There was no evidence that the accused did not have an operating mind or there were oppressivecircumstances. It was clear from his responses in the interview with Det. Sussex and Det. Newton that he was intelligent. [86] I find beyond a reasonable doubt that the statement made to Sgt. Berg was voluntary.

Both the confession rule and s. 7 of theCharter are concerned with a detainee’s right of silence. In R. v. Singh, 2007 SCC 48 , [2007] 3 S.C.R. 405, at paras. 36-37, theSupreme Court of Canada held: On the question of voluntariness, as under any distinct s. 7 review based on an alleged breach of the right to silence, the focus is on theconduct of the police and its effect on the suspect's ability to exercise his or her free will. The test is an objective one. However, theindividual characteristics of the accused are obviously relevant considerations in applying this objective test.

Therefore, voluntariness, as it is understood today, requires that the court scrutinize whether the accused was denied his or her right tosilence. The right to silence is defined in accordance with constitutional principles. A finding of voluntariness will therefore bedeterminative of the s. 7 issue. In other words, if the Crown proves voluntariness beyond a reasonable doubt, there can be no finding of aCharter violation of the right to silence in respect of the same statement. The converse holds true as well.

If the circumstances are suchthat an accused is able to show on a balance of probabilities a breach of his or her right to silence, the Crown will not be in a position tomeet the voluntariness test. [87] I find that the Applicant did not establish on a balance of probabilities a breach of s. 7 in light of the court’s determination thatthe crown proved beyond a reasonable doubt that the Applicant’s statement to Sgt. Berg was voluntary. (ii) Utterances made to P.C. Merklinger [88] P.C. Merklinger was dispatched to attend 429 Simcoe St. at 9:07 p.m. S.Sgt. Sutherland, Sgt. Merrimen, Sgt.

Berg and P.C.Morton were present at the scene when he arrived. While at the scene, he learned that a male had stabbed his roommate. [89] P.C. Merklinger said the officers did not know which unit was involved, so he covered the northwest entrance and otherofficers went to a southwest entrance. He was then advised that the southwest entrance was the target entrance and he joined officersSutherland, Berg and Morton at that location. P.C. Merklinger estimated he had been at the scene for 2 or 3 minutes when he went to thesouth-west entrance. [90] P.C.

Merklinger testified that the other officers were either just outside the exterior door or in the process of going through thesouth-west door. P.C. Merklinger observed the Applicant standing outside the exterior door of unit 5, smoking a cigarette and holding anopen cell phone. He was uncertain whether the male person was the 911 caller or he had just run out the door. P.C. Merklinger wasstanding approximately three feet from Sgt. Berg and the Applicant. [91] P.C. Merklinger was unsure the offence for which to arrest Mr. Pocock.

As a result, he told the accused at 9:13 p.m. that hewas being detained for a weapons investigation. The accused responded: “I know, I stabbed him.” P.C. Merklinger then said, “you areunder arrest for assault with a weapon”. [92] It was P.C. Merklinger’s evidence that the duration of his verbal exchange with Mr. Pocock was 5 seconds. P.C. Merklingerhandcuffed the accused to the rear and searched him for reasons of officer safety. He estimated it took one minute to handcuff and searchthe accused. He said Sgt. Berg was not present when he searched Mr. Pocock. P.C.

Merklinger said he smelled alcohol on the accused’sbreath but the accused did not appear to be intoxicated. [93] The Supreme Court in Grant, supra, para. 58 stated: In R. v. Suberu, 2009 SCC 33, we conclude that the s. 10(

b) right to counsel arises immediately upon detention, whether or not thedetention is solely for investigative purposes. That being the case, s. 10(

b) of the Charter required the police to advise Mr. Grant that hehad the right to speak to a lawyer, and to give him a reasonable opportunity to obtain legal advice if he so chose, before proceeding toelicit incriminating information from him. [94] I find that P.C. Merklinger informed the accused that he was detained for a weapons investigation. Mr. Pocock responded thathe stabbed the victim upon being informed he was detained for a weapons offence. P.C. Merklinger did not ask Mr. Pocock a question. P.C. Merklinger immediately informed the accused that he was arrested for assault with a weapon. P.C.

Merklinger handcuffed theaccused, and searched him for officer safety concerns and then transferred custody of Mr. Pocock to P.C. Hellyer, an officer in training. [95] I find that P.C. Merklinger did not attempt to elicit incriminating information from Mr. Pocock when he informed the accusedthat he was being detained for a weapons investigation. No police officer asked Mr. Pocock a question after he was detained by P.C.Merklinger or attempted to elicit incriminating evidence from Mr. Pocock. I find that the Applicant has failed to prove on a balance ofprobabilities that P.C.

Merklinger attempted to elicit incriminating information from him when the officer informed the accused he wasbeing detained. I find that P.C. Merklinger did not breach s. 10(

b) of the Charter when he informed the accused of the reason for hisdetention.

[ 96 ] P.C. Merklinger did not threaten the accused or offer him an inducement. There was no evidence of police trickery. There were no oppressive circumstances. I find beyond a reasonable doubt that the accused made a voluntary statement (“I know. I stabbed him.”) to P.C. Merklinger. (iii)Utterance made to P.C. Hellyer [ 97 ] P.C. Hellyer received custody of Mr. Pocock from P.C. Merklinger. He took him to his police vehicle that had been retrieved by P.C. Pike. P.C. Pike went into unit 5 with the EMS officers. P.C. Pike formed the opinion that the victim had been seriously injured.

He returned and instructed P.C. Hellyer to re-arrest the accused for attempt murder. P.C. Hellyer promptly informed the accused that he was re-arrested for attempt murder, informed him of his right to counsel and cautioned him that anything he said may be given in evidence. P.C. Hellyer read the s. 10(

b) right to counsel and caution from his duty book. [ 98 ] The officer asked the accused if he understood and Mr. Pocock responded “Yeah” The officer asked if he wished to call a lawyer? Mr. Pocock responded: “No not at this point. He attacked me, that’s it. It’s kind of a shame. I was the guy who called 911.” [ 99 ] Later at the police station, P.C. Hellyer was informed by the booking sergeant that the victim of the stabbing had died. P.C. Hellyer re-arrested Mr. Pocock for murder. He promptly informed the accused of his right to counsel. Mr. Pocock indicated he understood and informed P.C.

Hellyer that he wish to contact a lawyer. The officer cautioned the accused and Mr. Pocock said that he was attacked. [ 100 ] Mr. Pocock was given an opportunity to speak to a lawyer in private. The accused spoke to a lawyer at 10:06 p.m. [ 101 ] I find that P.C. Hellyer did not attempt to elicit any incriminating response from the accused when he re-arrested him for attempt murder or subsequently for murder.

The officer did not attempt to elicit any incriminating response from the accused when he informed him of his right to counsel or read to him the primary caution. [ 102 ] I find that the Applicant has failed to satisfy the court that P.C. Hellyer contravened Mr. Pocock’s right to counsel as protected by s. 10(

b) of the Charter . [ 103 ] There was no evidence of threats by P.C Hellyer. P.C. Hellyer did not proffer an inducement to the accused when he re-arrested Mr. Pocock for attempt murder and later that evening when he re-arrested the accused for murder. There were no oppressive circumstances. I find beyond a reasonable doubt that Mr. Pocock’s statements made to P.C. Hellyer were voluntary. V Detective Sussex’s Secondary Caution and Tainting (

a) Position of the Parties [ 104 ] It is Mr. Pocock’s position that Det. Sussex failed to administer a properly worded secondary caution and did not explain the meaning of it to the accused. Counsel submits that the failure to caution a suspect before questioning can render a statement involuntary. Counsel further submits that an improper secondary caution cannot cure a prior violation. [ 105 ] It is the position of the crown that P.C. Hellyer gave the accused his right to counsel, primary caution and the secondary caution on two occasions. Det. Sussex at the commencement of the interview/interrogation confirmed that the accused had spoken to counsel and received a primary caution. (

b) Analysis and decision re: Secondary Caution [ 106 ] Det. Sussex confirmed with Mr. Pocock before he commenced questioning him that he was under arrest for murder. The detective also confirmed that the accused had spoken with a lawyer and he was aware that anything he said to Det. Sussex could be used in evidence. [ 107 ] Det. Sussex did not read a secondary caution from his duty book. Mr. Pocock’s initial attempt to clarify the secondary caution was not successful.

The standard secondary caution states: If you have spoken to any police officer or to anyone with authority or if any such person has spoken to you in connection with this case, I want it clearly understood that I do not want it to influence you in making your decision. Do you understand? [ 108 ] A secondary caution attempts to make the person charged understand that she or he should not make a statement because of any hope of advantage or fear of harm from the police ( R. v. Roy , [2002] O.J. No. 5541 , at para.114).

The transcript from the interview/interrogation by Detective Sussex indicate that the other police officers treated him fairly: [2] Sussex : Would you agree with me you’ve been treated fairly? Pocock: So far, yes.

Sussex: So far, okay. Pocock: Well...yes. Sussex: And I don’t want any treatment that you’ve been given so far to influence anything that you say to me. Pocock: Okay. Sussex: Okay? Pocock: Okay. Det. Newton’s interview/interrogation of Mr. Pollock later that morning touched on the same area: [3] Newton: Okay, yeah, so it’s ah, it’s audio and video taped, there’s a microphone on the wall there and… Pocock: Yeah. Newton: …camera up there. Ah, so we are recording our conversation, okay. Um, so I just wanted you to know that, okay. Ah, so how have things been? How have you been treated, okay?

Despite the situation… Pocock: You guys have been treating me very well. There’s not a problem there. [ 109 ] The record shows that Mr. Pocock was not threatened by Sgt. Berg, P.C. Merklinger or P.C. Hellyer or treated unfairly by any of these officers. [ 110 ] The police officers who interacted with the Mr. Pocock were called as witnesses by the Crown and were subject to cross- examination by defence counsel. Other officers involvement with the accused, such as Det. Brook or Sgt. Hadley, was videotaped which was filed as an exhibit.

None of these officers said or did anything which had the potential to influence the accused’s decision to speak with Det. Sussex. [ 111 ] Defence counsel relied upon the decisions in R. Worral, [2002] O.J. No. 271 (SCJ) and R. v. Morrision , [2000] O.J. No. 5733 (SCJ) in support of the submission that a failure to give a secondary caution before questioning can render a statement involuntary. In Worrall , the accused provided information to a police officer concerning the death of a colleague. Those remarks were admissible.

However, when the accused provided further information which would alert any reasonably competent investigator to the realistic prospect that the death of the victim may be associated with an unlawful act committed by the person being questioned, a caution should have been given. The trial judge held that he was not satisfied that the Crown had proven that the remarks and interview of the accused that took place after the subsequent disclosure was voluntary. In the subject case, Sgt.

Berg had not received any information from the accused as to his involvement in the alleged stabbing before he asked the two questions. Once Sgt. Berg received information implicating the accused in a stabbing, he stopped questioning the accused and instructed P.C. Merklinger to arrest Mr. Pocock. I note that a secondary caution was not at issue in Worrall . [ 112 ] In Morrison , the police officers made no attempt to comply with s. 10(

b) of the Charter and falsely told the accused that he was not a suspect in order to obtain a statement from him. The misconduct of the police in Morrison was markedly different from the conduct of Sgt. Berg, P.C. Merklinger and P.C. Hellyer in the subject case. [ 113 ] Counsel for Mr. Pocock argues that the utterance made to Sgt. Berg rendered all subsequent statements inadmissible because they were tainted by Sgt. Berg’s breach of s. 10(b). Even assuming that Stg. Berg breached the accused’s s. 10(

b) right to counsel (contrary to the court’s determination), the application of the derived confessions rule is not applicable in the factual circumstances of this case. [ 114 ] There is no general rule that an involuntary statement renders all subsequent statements inadmissible on the ground that the second statement was tainted by the first statement. I find that the subsequent statements are not tainted by the first statement for the following reasons: (1) the tainting feature of the utterance made to Sgt. Berg (alleged breach of s. 10(b)), is not present in the videotaped statements made to Det. Sussex and Det. Newton because the accused had received his s. 10(

b) rights from P.C. Hellyer; (2) the first statement to Sgt. Berg was not a factor contributing to either of the later videotaped statements; (3) the accused received the advice of counsel prior to the interview/interrogation by Det. Sussex and Det. Newton informing the accused to remain silent which he ignored;

(4) there was no advertence to the previous statement to Det. Berg during the questioning of the Applicant by Det. Sussex or Det. Newton;(5) different officers (Sgt. Berg, Det. Sussex and Det. Newton) did the questioning; (6) there was a 3 hour time span between theutterance made to Sgt. Berg and the interview/interrogation by Dt. Sussex and more than 3 hours between the end of Sgt. Sussex’sinterview and the commencement of Det. Newton’s interview/interrogation; (7) the victim died after the first interview but there was nodiscovery of new evidence after the first interview; (8) the statement recorded by Sgt.

Berg consisted of brief answers to two questions incomparison to a 140 page and a 267 page interviews/interrogations respectively, conducted by Det. Sussex and Det. Newton ((R. v. I.(L.R.) (SCC), [1993] S.C.J. 132; Watt’s Manual of Criminal Evidence

(2012) David Watt, ex judicia, Carswell:Torontoat p. 604). VI Section 24(2) of the Charter [115] If I am wrong and the statement was obtained in breach of s. 10(b), I will determine if the statement should be excluded oradmitted in evidence under s. 24(2). [116] I find that the right to counsel is a fundamental right and a breach of s. 10(

b) would impact on the accused’s Charter protectedright of silence. [117] Sgt. Berg’s breach was not wilful or fragrant disregard of the accused’s right to silence and protection against self-incrimination.The officer lacked reasonable and probable grounds to arrest the accused until he learned Mr. Pocock’s involvement in the stabbing. Det.Berg believed that he was warranted in the circumstances to question the accused. Once Det. Berg learned the accused stabbed thedeceased and a victim was injured, he instructed P.C. Merklinger to arrest the accused for assault with a weapon.

He made no efforts tofurther question the accused. There were no tricks or strategies used when he asked Mr. Pocock what happened. [118] There were no institutional or systemic concerns. Neither P.C. Merklinger nor P.C. Hellyer questioned the accused, albeit theaccused volunteered utterances to them concerning the offence. P.C. Hellyer complied with s. 10(

b) when he re-arrested the accused andcautioned him for attempt murder and then for murder. Mr. Pocock was assisted by the police to consult with counsel in private. Det.Sussex confirmed that the accused had spoken with defence counsel before he commenced the first video-taped interview/interrogation. [119] The alleged offence is serious. The admission to Sgt. Berg in itself is not significant since he made a similar admission in his 911call. Assuming the subsequent statements were tainted, the importance of the statements to Det. Sussex and Det.

Newton is the details ofthe incident provided by the accused and the omission of critical details for which he did not provide an explanation. The statementscontain details however which support a defence of self-defence or may reduce the offence to manslaughter. [120] Mr. Pocock willingly talked to P.C. Merklinger and P.C. Hellyer when they informed the accused of the grounds of for hisarrest. As mentioned, he voluntarily spoke to Det. Sussex and Det. Newton after he consulted with counsel. Example 1. Pollock: I was surprised when they arrested me at my house.

I was calling 911 because was concerned about this guy who’dbeen attacking me. My lawyer said I’m not supposed to say anything, so I shouldn’t. But I mean, the guy had been attacking me andattacked me again.[4] Example 2. Sussex: And how many times did you stab him? Pocock: I don’t know. Sussex: If you could estimate? Pocock: That’s a question that I probably should not answer. My lawyer did say I’m not supposed to say anything, so I, Ishouldn’t be talking to you at all, based on what my lawyer said. Sussex: Okay.[5] Example 3. Sussex: Alright. What, what I’m telling you is that didn’t happen.

There’s no evidence, no physical evidence that supports thaton you, so we need to get by that and we are by that. He didn’t attack you, this is an argument over an oven.

Pocock: No he, he attacked me, he attacked me twice. Sussex: I’m telling you, there’s no evidence of that. Pocock: Other than my saying that that’s what happened. Sussex: Well, you can say that, but what I’m telling you is... Pocock: That is evidence of some sort, somebody saying to you this is what happened, that is evidence, you can’t deny that. But you’re saying that that’s not evidence, you’re, you’re ignoring something. Sussex: No, I’m not ignoring that. I’m hearing you, but you’re not listening to me.

What I’m telling you is that there’s no ah, corroborating evidence, there’s nothing that supports that on you. He did not attack you. Pocock: You can say that if you wish. Sussex: Okay, and you don’t disagree with me? Pocock: I am not going to say anything further. This is, you’ve just... No, you’ve gone beyond the bounds of being normal and reasonable. Sussex: Well Gord, this is... Pocock: I’m sorry, that’s... Sussex: Well let’s, let’s take it back a little bit then. Pocock: No, I’m sorry, I'm not gonna speak to you any further without a lawyer present. That’s just wrong. You’re ignoring what I’ve just said.

Sussex: No I’m not. [6] Example 4. Sussex: Okay. Describe how you were ah stabbing Dexter for me. Pocock: No um, he was on top of me, I don’t remember more than that. I know it was in the back, that’s about all I know. Sussex: Just do the motion for me. Pocock: No, I’m not gonna do that. Um, I...honestly, my lawyer said specifically I’m not supposed to be talking to you. [7]

[ 121 ] I am convinced that the accused would have spoken to Sgt. Berg even if he had been cautioned by Sgt. Berg ( Grant , supra , para. 96 ). The applicant declined the offer to speak to counsel when he was arrested for attempt murder. The best evidence is that the accused answered questions posed by Det. Sussex and Det. Newton even though his lawyer told him not to do so. Indeed he told Det. Sussex the advice he received from his lawyer and then deferred answering some questions but not others. [ 122 ] I find that society has an interest in the adjudication of the case on its merits.

The inculpatory and exculpatory evidential parts of the statements made shortly after the incident should be received by the jury to assist them assess the evidence and to render a verdict. The accused was aware that it was a serious offence; he had received advice from counsel but chose to speak to the police officers Det. Sussex and Det. Newton. [ 123 ] I find that the accused’s statements made to Det. Sussex and Det. Newton are admissible pursuant to s. 24(2) of the Charter . VII Police Theorizing in Questions and Cross-Examination [ 124 ] Counsel for Mr. Pocock submits that the statements made to Det.

Sussex and Det. Newton should be excluded because it contains the theory of the police officers. The court acknowledges it has a residual discretion to exclude evidence if its prejudicial effect outweighs its probative value. However, the remedy sought by the Applicant is too broad. It is my view that counsel for the Crown and defence should attempt to eliminate the parts of the interviews which lack substance. If there is a disagreement as to which additional parts should be excluded, counsel may address the court.

VII Conclusion [ 125 ] I make the following findings: [ 126 ] (1) the Crown has proven beyond a reasonable doubt that Mr. Pollock’s utterances to Sgt. Berg, P.C. Merklinger and P.C. Hellyer were voluntary; (2) the Crown has proven beyond a reasonable doubt that the videotaped statements made to Det. Sussex and Det. Newton were voluntary;

(3) Mr. Pocock has not proven on a balance of probabilities that Sgt. Berg breached s. 10(

b) of the Charter . __________________________ “ Justice A.W.Bryant” Justice A.W. Bryant Released: May 3, 2013 CITATION : R. v. Pocock, 2013 ONSC 2346 COURT FILE NO.: 11-175 DATE: May 3, 2013

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent - and – GORDON POCOCK Applicant REASONS FOR JUDGMENT BRYANT J. Released: May 3, 2013