IN THE SUPREME COURT OF BRITISH COLUMBIA
|
Citation: |
R. v. Ferguson, |
|
|
2018 BCSC 242 |
Date: 20180219
Docket: 27181
Registry: Vancouver
Regina
v.
Knowah Ferguson
Before: The Honourable Madam Justice DeWitt-Van Oosten
|
This matter is subject to a publication ban imposed pursuant to s. 486.5(1) of the Criminal Code, R.S.C. 1985, c. C-46. Identifying information has been removed from this version of the judgment to comply with the court order. |
Reasons for Judgment
Pre-trial Application #1––Right to Counsel
|
Counsel for the Crown: |
Catherine P. Fedder |
|
Counsel for the Accused: |
Jonathan P.R.
Desbarats |
|
Place and Dates of Hearing: |
Vancouver, B.C. February 1–13, 2018 |
|
Place and Date of Judgment: |
Vancouver, B.C. February 19, 2018 |
Table of Contents
B. Police Actions Post-Transport to Vancouver Jail
D. Information Relayed to CFSEU
IV. LEGAL PRINCIPLES and ANALYSIS
C. Contested Breach––A Change in Jeopardy
[2] Knowah Ferguson (the accused) is charged by Indictment with three offences under the Criminal Code, R.S.C. 1985, c. C-46:
a) attempt murder with a firearm (s. 239(1)(a.1));
b) conspiracy to commit murder (s. 465(1)(a)); and,
c) unlawful possession of loaded prohibited and restricted firearms (s. 95(1)).
[3] The Crown alleges that the accused tried to shoot and kill Damion Ryan in the Vancouver International Airport on April 10, 2015 ("YVR"). However, the gun did not fire and Mr. Ryan was able to flee.
[4] From April 11, 2015 to June 15, 2015, the accused is said to have conspired with an associate by the name of Witness X, as well as others, to kill an unknown person.
[5] On June 14, 2015, the accused was stopped in an allegedly stolen vehicle with Witness X, as well as a second individual named Gino McCall. When police searched the vehicle, they found a suitcase containing five firearms and ammunition, including three handguns, an AK-47 assault rifle and a silencer. All three occupants were taken into custody.
[6] The accused has been arraigned on the Indictment and the trial proper is scheduled to commence on May 22, 2018. The accused has filed notice of various pre-trial motions, including applications to exclude evidence on grounds it was obtained in violation of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ("Charter").
[7] The first pre-trial application was heard between February 1–13, 2018 in the form of an evidentiary voir dire. The issues to resolve on the application arise out of the arrest and detention of the accused following the stop of the allegedly stolen vehicle. The accused claims that his rights under ss. 10(a) and (b) of the Charter were violated by officers with the Vancouver Police Department ("VPD").
[8] These are my Reasons for Judgment on whether one or more breaches of the Charter are established.
[9] I will not detail the entirety of the evidence on the voir dire. Instead, I will set out what I consider the most salient parts for the purpose of the analysis.
[10] Shortly before 2:30 a.m. on June 14, 2015, a broadcast over the police radio system advised VPD officers of a stolen truck driving into Vancouver from Burnaby. The broadcast provided a description of the vehicle, as well as the licence plate number.
[11] Det. (then Cst.) Cara Adams was in the area of Main Street and Broadway when the truck drove by her. She and her partner began to follow. They fell behind at a red light. Eventually, they caught up to the truck, a Ford F350 (the "F350"). By this time, other officers had "boxed and pinned" the F350 at Main Street and 10th Avenue. They were giving commands to the occupants, with guns drawn. Det. Adams saw three occupants emerge. They were told to lay on the ground and then handcuffed. She described the situation as a "high-risk takedown".
[12] The three males were brought to their feet and the accused was placed by Det. Adams' vehicle. She told him he was under arrest for possession of stolen property. She does not recall verbatim what he said to her. However, it was something to the effect that he knew why he was under arrest because another officer had explained everything to him. She thought this was five, maybe ten minutes after the accused emerged from the F350. When speaking with him, Det. Adams did not know whether anything had been located in the F350.
[13] She did not advise the accused of his right to counsel under s. 10(b) of the Charter. She testified she believed "wholeheartedly" that he was aware of his rights and was provided with the requisite information by another officer. She reached this conclusion because of the manner in which the accused stopped her from speaking and told her that the reasons for his arrest had been explained to him.
[14] Det. Adams made no enquiries of other officers at roadside to confirm whether such was the case. She assumed the accused had been Chartered and received the standard police warning (or caution) based on what he told her. She made no attempt to clarify whether he understood the constituent elements of his rights. She did not ask the accused whether he had spoken to a lawyer. She agreed, in cross-examination, that it would have been easy for her to do these things. She also agreed it was readily apparent that the accused was a young man. He was 18 at the time of the stop.
[15] Det. Adams acknowledged that as a matter of standard practice, when she arrests people, she will tell them they are under arrest; that they do not have to say anything; anything they do say can be used against them; and, she tells them they will be given an opportunity, "shortly", to call a lawyer. She does this "right away". She understands the importance of providing detainees with the right to counsel and facilitating access to a lawyer. However, she did not take these steps with the accused.
[16] She testified did not know who she was dealing with and wanted to establish the accused's identity. This was necessary to determine if he should be released, or whether the "public interest" required that he be held in police custody. From her perspective, checking for the existence of outstanding warrants would be relevant to this determination.
[17] Det. Adams did not search the accused. She did ask him for his name. He provided his name, as well as a date of birth (February 10, 1997). He spelled his name for her. He was cooperative and did not hesitate in supplying the information. In turn, at 2:43 a.m., Det. Adams fed this information into her vehicle's computer system. This system automatically searches the CPIC and PRIME police-information databases. CPIC is Canada-wide; PRIME is limited to British Columbia. The accused's name did not generate hits in either database.
[18] Det. Adams went back to the accused and asked for identification. He said he had identification, but not with him. He offered to go and retrieve it. She told him he was not free to go. She asked why he did not have identification on his person. The accused told Det. Adams that he left his identification in his motel room. She asked if he was "from here" (meaning Vancouver). He said "no" and explained he was from Ontario. She asked if he knew the name of the motel where he was staying. He said he was staying at the City Centre Motel ("City Centre"). This is only a few blocks from where the F350 was stopped by police.
[19] She asked the accused the number of his motel room. He responded with either 126 or 127. She confirmed with him that his identification was at City Centre.
[20] Det. Adams said she made these enquiries because after checking the police databases, she was not confident of the accused's identity. Even though he readily provided information to her, she was not sure he was telling the truth. From her perspective, just because someone provides a name does not mean it is true. She saw it as her duty to confirm the information.
[21] Det. Adams was not told anything about items having been found in the F350, including firearms, before or while speaking with the accused. Nor did she see any firearms associated with the F350 until after her dealings with him. She said she asked questions of the accused to determine who he was, with a view to assessing his release. She did not try to elicit evidence about the F350. She did not ask questions about any other offence. She did not ask the accused about his room at City Centre to lay the foundation for a search warrant. Instead, her interaction with him was about confirming his identity to assess whether he was "releasable".
[22] She acknowledged she made no reference to this rationale for the questions in her police notes. It was not until Det. Adams was interviewed by Crown Counsel in November 2017 for trial preparation that she first mentioned the need to confirm identity for the purpose of release.
[23] After Det. Adams asked Mr. Ferguson the questions, the accused was handed over to another officer to be transported to the Vancouver holding jail ("Vancouver Jail"). She told a patrol sergeant at the scene (Sgt. Friesen) that the accused's identification was at City Centre. She then went to City Centre to establish whether such was the case. She does not recall if she was asked or told to go to City Centre. The purpose of attending was to establish if the motel room was associated with the accused, and to confirm the information already obtained by police.
[24] She arrived at 3:10 a.m. with another officer. Det. Adams spoke to the motel desk clerk and asked whether Room 126 or 127 was occupied by a young black male. The clerk said "yes", checked the computer system and told Det. Adams that the accused was registered to Room 127. The clerk said the room was paid for in cash. A Hamilton, Ontario address was provided to City Centre. The desk clerk gave police a print out of the registration information.
[25] Det. Adams and the other officer located the room. They maintained surveillance until approximately 7:45 a.m., at which point Det. Adams was relieved of her duties. While maintaining surveillance, she was aware firearms had been located in the F350. She acknowledged that part of the reason for watching the room was to maintain surveillance while VPD applied for a search warrant. However, she was also there to address any public safety concerns that might arise.
[26] Cst. Legault participated in the roadside arrests and detention. Along with his partner, Cst. Syzlowski, he assisted in "pinning" the F350 from the front. This occurred at about 2:35 a.m. He exited his vehicle and began making commands of the occupants. He had a police rifle with him. There were three occupants in the F350. Cst. Legault told them they were under arrest. He directed them to show their hands; not move; and to follow direction. He spoke with a raised voice. He directed the occupants to get out one at a time. They complied. Once they emerged, it was noted all three were wearing gloves. The gloves were a brown shade of latex.
[27] At some point, Cst. Legault took control of the driver, Witness X. He told him he was under arrest for possession of stolen property and provided his Charter rights to him, including the right to counsel.
[28] Witness X had already been searched by Cst. Peters, another VPD officer at the scene. Cst. Peters found a screwdriver in Witness X's left jacket pocket. A key was located in the left front pants pocket. Cst. Peters described Witness X as wearing ripped latex gloves, beige in colour.
[29] Sgt. Friesen arrived at 10th Avenue and Main Street when the last of the three occupants was placed in handcuffs. He did not participate in the arrests. His role was to assess resource needs at the scene. He told the officers in attendance that if firearms were found in the F350, the suspects should be re-Chartered and warned because it changed their "jeopardy".
[30] While at the scene, Sgt. Friesen spoke with Cst. Rhode, another officer who participated in the roadside stop. He showed Sgt. Friesen a picture on his phone and asked whether Sgt. Friesen thought it looked like one of the occupants of the F350. Sgt. Friesen confirmed that it did. Cst. Rhode told him the photo related to an ongoing criminal investigation involving an incident at YVR. Sgt. Friesen was not given details of the YVR incident. He believed Cst. Rhode thought the person in the photo was a "suspect" in the other incident.
[31] Sgt. Friesen left the scene and went to City Centre. Det. Adams was in the parking lot. She was there to watch a room in which one of the three occupants may have stayed. Her role was to watch for anyone who might attempt to remove anything from the room.
[32] Cst. Rhode was working as a dog handler at the time of the accused's arrest. He assisted in the "box and pin" of the F350. He saw the occupants exit the vehicle, one at a time. He said there were eight to 12 officers at the scene.
[33] While there, Cst. Rhode spoke with another officer by the name of Cst. Primerano. He saw Cst. Primerano remove a suitcase from the F350, put the suitcase on the ground and open it. He called Cst. Rhode over to see what was inside. There was some clothing, as well as several firearms, including a long-barrelled rifle (AK-47 style), handguns and ammunition. Cst. Rhode looked in the vehicle. The interior was messy. He saw gas cans.
[34] Cst. Primerano told Cst. Rhode that he "strongly" felt one of the occupants of the F350 looked like someone he saw in a police bulletin. The bulletin had been circulated to assist in identifying the person depicted therein. Cst. Primerano advised Cst. Rhode he thought this person was the rear passenger of the F350 (the accused).
[35] Cst. Primerano left the arrest scene before Cst. Rhode. About 15 minutes later, he contacted Cst. Rhode and asked that he take photographs of the three occupants. Cst. Rhode did so, using his phone. He then sent the photographs to Cst. Primerano. In return, Cst. Primerano sent a photo to him. Cst. Rhode compared the photo provided by Cst. Primerano to the occupants of the F350, and confirmed for Cst. Primerano that the accused was the person who most resembled the photo. Cst. Rhode relayed what he heard from Cst. Primerano to Sgt. Friesen. This was still at roadside. He said that when he was at the scene, he felt the occupants of the F350 might have gang-links.
[36] On June 14, 2015, at 2:27 p.m., Cst. Rhode sent the photos he took to Sgt. McConnell, with the VPD gang crime unit. On June 16 at about 6:51 p.m., Cst. Rhode sent these same photos to Cpl. Dhesi with the Combined Forces Special Enforcement Unit (CFSEU).
[37] The photo of the accused taken by Cst. Rhode was gathered while the accused was in the police van, awaiting transport from roadside to the Vancouver Jail. Cst. Rhode did not advise the accused of his right to counsel before taking the photo.
[38] Cst. Syzlowski was at the arrest scene. He assisted with the arrest of Gino McCall, the front seat passenger in the F350. Mr. McCall was told he was under arrest for possession of stolen property. "Minutes later", Cst. Szylowski informed him that he was under arrest for possession of weapons. Relying on his notes, the officer confirmed this was at 2:43 a.m.
[39] At 3:20 a.m., the police wagon was about to transport all three occupants to the Vancouver Jail. Cst. Syzlowski learned from the wagon driver that the accused had likely not been Chartered or warned about his right to remain silent.
[40] Cst. Syzlowski approached the accused and read him the right to counsel and standard police warning. He asked the accused for his name and date of birth. The accused provided it. He also asked to see any tattoos for identification purposes. The accused complied. Cst. Syzlowski ran the information on the computer system in his vehicle. He checked CPIC, PRIME and PIRS (which is Canada-wide). There were no hits.
[41] He returned to the accused and spoke to him again. He confirmed that the name provided was his actual name. He told the accused that if he lied about his name, he would be charged with obstruction. Cst. Syzlowski said he did this because in his experience, most people in a stolen vehicle with firearms will generate hits on the databases describing previous police contact. As such, he was not sure the name provided was the real name.
[42] The accused told him that his identification might be in the motel room where he was staying. Cst. Syzlowski knew the accused was going to the Vancouver Jail and would likely be speaking with detectives. As such, he did not make further enquiries about his identification, or where he was staying. Cst. Syzlowski placed paper bags over the hands of all three males to preserve evidence.
[43] As noted, Cst. Primerano had also been at the arrest scene. He assisted with the "box and pin" of the F350. He described Cst. Legault as the primary person who issued commands to the occupants. He was loud enough that the people in the F350 would be able to hear. Once the occupants emerged, Cst. Primerano approached the F350 to make sure there was no one laying down inside. He saw a large purple suitcase on the back seat, along with red and yellow gas containers.
[44] Cst. Primerano pulled out the suitcase, put it on the ground and opened it. He saw a dark-coloured hoodie and several firearms, including what seemed to be an AK-47. He let everyone know loudly that there were guns in the suitcase. At 2:45 a.m., he broadcast the discovery of the guns over the police radio. He left the suitcase on the ground and passed its supervision to another officer. Cst. Primerano was acting as a dog handler on June 14. He had to leave for another call.
[45] Cst. Primerano got a good look at the occupants of the F350. He believed the rear passenger (the accused) could be the person he saw from material relating to a different investigation. It was "the way he looked". His facial features looked the same, as well as his hair.
[46] When Cst. Primerano made this observation, he was thinking of a bulletin distributed by the CFSEU. He saw the bulletin and related video footage in April 2015 when participating in a briefing with CFSEU. He understood there was an attempted homicide at YVR. The suspect in that file approached an individual seated at a table in YVR and pulled out a firearm. He was dressed in all black and CFSEU had a photo of the suspect entering the Canada Line SkyTrain at YVR. A bulletin containing photographs was distributed by CFSEU to assist with identifying this person.
[47] Cst. Primerano had photographed the picture in the CFSEU bulletin with his phone. He spoke with Cst. Rhode at the arrest scene on June 14, 2015 and told him he thought the accused was the same person.
[48] After he left the scene, Cst. Primerano had further conversation with Cst. Rhode and shared the photo from the CFSEU bulletin with him. He asked Cst. Rhode to take pictures of the three males from the F350 and send the photos to him. Cst. Rhode did so. Cst. Primerano saw the photos and was "fairly confident" that the rear passenger of the F350 was the person in the bulletin.
[49] Cst. Primerano testified that before he left the scene, he relayed his suspicions to Sgt. Friesen. He told him that the male in the back seat of the F350 might be involved in a CFSEU file and Sgt. Friesen should let people know. From Cst. Primerano's perspective, this information was "important enough" that it should be passed along. Cst. Primerano did not relay his belief about the accused to anyone else after June 14.
[50] (Now retired) Insp. Jess Ram was an on-call "duty officer" on June 14, 2015. He was called at 3:41 a.m. by Sgt. Friesen and told about the circumstances involving the F350. At the time, Insp. Ram was overseeing all operations for the VPD on behalf of the Chief Constable. Based on what he was told, he authorized the involvement of VPD's forensic IDENT unit in the investigation and provided Sgt. Friesen with contact information for VPD's Major Crime section. When Insp. Ram spoke with Sgt. Friesen, he was not told of a possible connection between the occupants in the F350 and an ongoing CFSEU investigation.
[51] Sgt. Pollard was on call for VPD's Major Crime section on June 14, 2015. At 3:46 a.m., he also received a call from Sgt. Friesen. He was told police stopped a stolen vehicle with three occupants and they were arrested for stolen property and weapons offences. He was also told that guns were found in a suitcase; there were gas cans in the F350; and the occupants were wearing latex gloves.
[52] Sgt. Pollard was told that the occupants of the F350 were from Ontario and one of them had a key to a room at City Centre. It was explained that plain-clothed officers were maintaining surveillance on the motel room. Sgt. Friesen informed him that VPD's IDENT unit would take photographs of the occupants and their clothing. Nothing was said to him about the possibility of one of the males from the F350 being depicted in a CFSEU bulletin.
[53] The investigation involving the F350 was taken over by VPD's Major Crime section. Sgt. Pollard told Sgt. Friesen to continue with surveillance at City Centre in the event a warrant was obtained. If anyone emerged from, or tried to enter the motel room, they were to be stopped and identified.
[54] Sgt. Pollard assigned Det. Ryan Campbell to the file. He called Det. Campbell at about 4:00 a.m. on June 14 and provided him with the same information he received from Sgt. Friesen. He also reached out to other officers to assist with the investigation, as well as a crime analyst.
[55] At approximately 11:55 a.m. on June 14, 2015, Sgt. Pollard called Det. Campbell and asked for an update on the F350 file. Det. Campbell provided him with information on the guns located in the vehicle. Sgt. Pollard was told that a silencer was in the suitcase taken from the F350. He was also told that one of the three occupants was a Blood Gang Member from Hamilton, Ontario.
[56] Peggy Irwin is a civilian member of the VPD who works as a strategic and tactical analyst. She supports investigators by collecting and analyzing information from police databases and other sources, identifying patterns or trends that may be of assistance to them. This includes preparing "backgrounds" on particular suspects.
[57] In April 2015, Ms. Irwin assisted with a file involving an alleged attempted murder at YVR. She received information from CFSEU, including two bulletins distributed by CFSEU containing photographs of a "person of interest" in the incident, as well as clothing that may have been worn by him.
[58] On June 14, 2015, Ms. Irwin was asked by Sgt. Pollard to assist with the investigation involving the F350. She was told three people were stopped in a stolen vehicle; they were arrested; and items were located in the vehicle. She was told the detainees were from Ontario. Ms. Irwin was asked to prepare background information on them from the police databases that she would ordinarily have access to.
[59] For this task, Ms. Irwin was provided with information specific to the accused. She also retrieved a book-in photo taken of him at the Vancouver Jail. When she saw the photo, she thought the accused looked familiar, but could not place him. Before completing her work, she realized that the photo looked similar to material she reviewed in April 2015 about the incident at YVR.
[60] This was at about 12:15 or 12:30 p.m. on June 14. It occurred to Ms. Irwin that she should once again look at the YVR material. She opened the relevant material on her computer and thought the "person of interest" as captured in the CFSEU material looked similar to the book-in photo of the accused. There were similarities in facial hair, skin tone and the person's hair.
[61] Ms. Irwin called Det. Campbell to her desk and showed him the photos, side by side. He was working in the same office. She gave him a quick synopsis of the incident at YVR and told him that the file was very sensitive. Det. Campbell asked her to email the photographs to himself and Det. (then Cst.) Tim Russell. She did so at 12:35 p.m. Her cover email stated:
Ferguson kind of looks to me like the POI [person of interest] in the attempt on Damion Ryan at YVR on April 10th. Just in case you happen to see some similar clothing ….
[62] When she spoke with Det. Campbell, Ms. Irwin knew from the April 2015 information that Damion Ryan met with an Asian male in a food court at the YVR. A person dressed in a burka came to the food court and put a gun to Mr. Ryan's head. There was a clicking sound. The gun failed to fire and all three people took off running. She told Det. Campbell that the person in the photo from the CFSEU bulletin was a person of interest in the YVR matter.
[63] When he was assigned to the F350 investigation, Det. Campbell worked with VPD's Major Crime section. He testified that at 4:04 a.m. on June 14, 2015, he was called to work by Sgt. Pollard. He was briefed on the circumstances involving the three males in the F350. Nothing was said about a possible connection between one of these males and an incident at YVR.
[64] After the briefing, Det. Campbell directed that the three males be put in separate cells and left in their clothes, so they could be photographed. He also told the Vancouver Jailer to ensure the males were given access to legal counsel as soon as practicable. He called in VPD's IDENT unit and asked them to attend at the Vancouver Jail, photograph the three males and seize their clothing. He also provided IDENT with a heads up that they may be required at City Centre.
[65] Starting at 5:01 a.m., Det. Campbell began a review of the VPD file involving the F350. From this, he obtained the following "key facts":
· the investigation involved a stolen vehicle;
· he knew the location of the vehicle stop; the vehicle's description and licence plate number;
· he knew the names of the detainees and their dates of birth;
· all three males were wearing gloves;
· guns were found in a bag;
· the guns were found in the rear passenger seat;
· Room 123 of City Centre [later corrected to be 127] was associated with the three males; and,
· a key with the number 127 was found on one of the males during a search.
[66] There was no information in the material he reviewed suggesting that one of the three males was associated with an incident at YVR.
[67] Det. Campbell continued to gather information about the investigation and delegate or assign tasks.
[68] At about 6:30 a.m., Det. Russell was assigned the task of obtaining a search warrant for Room 127 at City Centre. Det. Campbell testified he does not recall telling Det. Russell to look for any specific items during the search. From his perspective, the purpose of the warrant was to gather evidence in support of the incident involving the F350.
[69] At 7:45 a.m., Det. Campbell attended a VPD garage and participated in a search of the F350. The results of the search were conveyed to Det. Russell.
[70] By 9:00 a.m., Det. Campbell had concluded it was likely the three males had been involved in a crime other than possession of the stolen vehicle and firearms. For instance, a home invasion or break and enter. To him, three males in a stolen vehicle wearing dark clothing, with gloves and gas cans, suggested they were intending on "torching" the vehicle after committing a crime.
[71] At 9:13 a.m., Det. Campbell was told that a search warrant had been obtained for Room 127 at City Centre. He did not participate in the search. He was later informed that the warrant was executed. This was after the noon hour. At the time he learned of the warrant, Det. Campbell said he had no information about any possible connection between the accused and a CFSEU investigation. He testified he was not aware that any VPD officers were theorizing about a potential nexus.
[72] Cst. (then Det.) Allan Mah participated in the search of Room 127.
[73] Cst. Mah received the search warrant from Det. Russell. He went to City Centre with another VPD officer. At 12:10 p.m. on June 14, an Emergency Response Team entered the hotel room to clear it. At 12:15 p.m., the room was turned over to Cst. Mah and the other officer for the purpose of the search.
[74] The actual search was conducted by members of VPD's IDENT unit. Cst. Mah's role was to act as a scribe, make note of anything significant and report back to Det. Russell.
[75] Cst. Mah testified that apart from receiving the warrant, he was provided with no instructions on what should be looked for in Room 127. He was not told to look for any items relating to an alleged incident at the YVR. The CFSEU bulletins from April 2015 were shown to him when testifying on the voir dire. He did not see these bulletins before going into Room 127. He recalls receiving a phone call from a member of CFSEU while the search was ongoing. He does not recall the details of the conversation. He believes he simply referred the CFSEU member to the lead investigator on the VPD matter (Det. Campbell).
[76] The search of Room 127 ended at 1:35 p.m. on June 14.
[77] Cst. Mah told Det. Russell by phone that the search was finished. He was instructed to hold the room until given permission to release it. This permission came at 2:19 p.m.
[78] Cst. Mah testified that on June 14, he exchanged no emails with either of Det. Campbell or Russell, other than Det. Campbell told him to file an overtime slip. At no point during or after the search was he asked by Det. Campbell (or anyone else) to look for items specific to the CFSEU investigation.
[79] Cst. Mah completed his shift mid-afternoon on June 14. He does not recall being contacted by anyone from CFSEU after he was finished for the day.
[80] Det. Campbell assigned Dets. Machuik and Gow to interview the three occupants of the F350. The accused was interviewed first, followed by Witness X and Gino McCall. Det. Campbell did not instruct the two detectives on how to conduct the interview, or tell them what questions to ask.
[81] He acknowledged that at around 12:00 or 12:30 p.m. on June 14, he was in the office with Peggy Irwin. She showed him a book-in photo of the accused, along with a still image that he understood was from a bulletin produced by CFSEU. She asked him if the person in the two photographs looked similar. He said "yes". He thought it was an "exact match".
[82] Ms. Irwin told him that the person in the still image was a potential suspect in another incident. He cannot remember the whole of the information she provided to him. He does recall Ms. Irwin saying that the incident occurred at YVR; the suspect was a black male; and the matter was under investigation by CFSEU. He understood that the person in the CFSEU bulletin was a person of interest, or suspect, in the attempted murder of Damion Ryan on April 10, 2015.
[83] At 12:41 p.m., Det. Campbell sent an email to Dets. Machuik and Gow. The email enclosed two photographs––the book-in photo of the accused and a photo in one of the CFSEU bulletins. Det. Campbell's email said:
Do these two look like the same person? Get Trevor [Gow] to take a good look at the pic. Don't disclose photo to suspect though.
[84] Det. Campbell testified that when he sent this email, he understood the interview of the accused was ongoing. He was asked about the purpose of the email. He explained that Dets. Machuik and Gow would see the accused in person and the accused would be sitting directly across the table from Det. Gow. He wanted their opinion on whether the accused was the same person captured in the CFSEU photograph. He told them not to disclose the CFSEU photo as he was not sure it was the accused in the photo and he did not want to give the accused information in another, unrelated investigation. Among other things, he did not want to jeopardize the other investigation.
[85] Det. Campbell made no attempt to stop the interview of the accused when Peggy Irwin brought her observations about a possible link between the accused and the CFSEU investigation to his attention. From his perspective, the YVR matter was under investigation by another agency. It had nothing to do with VPD's investigation. In these circumstances, he did not consider it necessary that the accused be told of the CFSEU circumstances and given a second opportunity to consult with legal counsel.
[86] Det. Campbell acknowledged that to make an informed choice about whether to speak with police, detainees need to understand the jeopardy they face. He also acknowledged that some of the questions likely to be asked of the accused would be relevant to the YVR investigation, such as how long he had been in Vancouver and the nature of his activities. This might include questions about his specific whereabouts in April 2015.
[87] It was suggested to Det. Campbell that he did not want the accused to see the photograph from the CFSEU bulletin because he was concerned it would render the accused less forthcoming. He denied such was the case. From his perspective, VPD was investigating its own matter. If other things came up, they were unrelated. He did not consider the information he received about the CFSEU investigation to have increased the jeopardy of the accused. He reiterated that VPD was not investigating the CFSEU file.
[88] At 12:45 p.m. on June 14, Sgt. Pollard and Det. Campbell spoke. Det. Campbell provided a further update on the status of the VPD investigation. At this time, Sgt. Pollard was told of a possible link between the persons stopped in the F350 and a CFSEU file involving the attempted murder of Damion Ryan. The notes he made about this conversation say: "suspect, black male, dressed like a woman". He understood from Det. Campbell that the suspect from the YVR incident could be one of the three males arrested from the F350.
[89] At 2:17 p.m., Det. Campbell contacted A/Cpl. Dhesi with CFSEU. He sent her a copy of the email he provided to Dets. Machuik and Gow. Just before doing so, he spoke to Cpl. Dhesi in person. He told her something to the effect that VPD had arrested someone on stolen vehicle and gun charges, and he looked similar to a person in a poster distributed by CFSEU.
[90] At 2:20 p.m., Det. Campbell spoke once more with Sgt. Pollard. From this conversation, Sgt. Pollard understood VPD believed the accused was the suspect in the YVR file.
[91] The accused was interviewed on June 14 by Det. Gow. The interview was monitored by Det. Machuik.
[92] The accused was escorted from the Vancouver Jail to an annex for the purpose of the interview at 12:03 p.m. The interview commenced at 12:15 p.m. Det. Gow conducted the interview. Det. Machuik was in a "monitor room" and watched the interview on a computer screen. He made electronic notes of the interview.
[93] Det. Machuik testified he did not see the email sent to him by Det. Campbell at 12:41 p.m., asking whether the accused looked like the person in the photo from the CFSEU bulletin, until well after the interview had completed. In fact, it was not until he was back at his regular office later that same day, after conducting interviews of both Witness X and Gino McCall.
[94] Although Det. Machuik had his phone with him while monitoring the interview of the accused, he was concentrating on the interview and would not have checked his emails. If someone wanted to get something to him that required his immediate attention, he would have expected a phone call.
[95] Det. Gow testified that when assigned the task of interviewing the accused, he believed the interview was about possession of a stolen vehicle and firearms. Prior to conducting the interview, he was not told of a potential link between the accused and the CFSEU investigation for which bulletins were circulated in April 2015.
[96] Det. Gow said he did not see the 12:41 p.m. email from Det. Campbell during the interview. It is his recollection that he opened the email after the interview completed. He also testified he does not recall speaking with Det. Machuik about the CFSEU matter. At no point while conducting the interview was he made aware that the accused was a suspect in an incident at YVR.
[97] A transcript of the custodial interview was filed on the voir dire.
[98] Prior to the interview, the accused was asked whether he understood the "nature of the charges" he was facing. He responded: "... I know they told me something, they told me, uh, PCP, and that's like, uh possession of stolen property … And then, um, they told me some next one like, uh, you guys found some weapons or something like that".
[99] He was also asked whether he had spoken to a lawyer. The accused said he was not able to. Instead, he "got an answering machine".
[100] Det. Gow proceeded to detail the specific offences for which the accused was under arrest: possession of stolen property; careless storage of a firearm; unauthorized possession of a firearm; and, unauthorized possession of a firearm in a motor vehicle.
[101] The accused was provided with his right to counsel and asked if he wanted to call a lawyer. He answered in the affirmative. Det. Gow also advised the accused that he was not obliged to say anything, but anything he did say may be given in evidence.
[102] At 11:29 a.m. on June 14, the accused was placed in a phone room for the purpose of accessing legal counsel. The call connected at 11:33 a.m. and completed at 11:38 a.m. The accused confirmed that he spoke with a lawyer and understood the advice given to him.
[103] As noted, the custodial interview commenced at about 12:15 p.m.
[104] I have read the entirety of the transcript. No questions were asked of the accused specific to the CFSEU investigation or the incident alleged to have occurred at YVR. Instead, the interview was focused on the accused's association with Witness X and Gino McCall; his involvement with the F350 and suitcase containing firearms; and, the reasons for the three males driving around Burnaby and Vancouver in the early morning hours of June 14, 2015.
[105] Open-ended questions were posed by Det. Gow that, depending on the answers, could have elicited evidence relevant to the accused's whereabouts in April 2015, his purpose for being in Vancouver and the possibility of involvement in other offences.
[106] For instance, Det. Gow had this exchange, at p. 54 of the interview transcript:
G … So one of the things that our Ident Section, our forensics' guys are gonna do, is they're gonna process, not only the bag, the outside, underneath, inside, all the firearms, they're gonna check to see if any of those firearms have been linked to anything that's been, uh, any other shootings that have happened.
F Mm-hmm.
G Not only in, around Vancouver and the surrounding area, but nationally.
F Mm-hmm.
G And then the serial numbers.
F Mm-hmm.
G All the serial numbers are gonnna be run, not only …
F Mm-hmm.
G … in Canada, but in the U.S.
F Mm-hmm.
G Okay? So we will have access to all the records for those firearms from both side of the border. Okay? So what do you think that we're gonna find when we process those firearms?
F I can't answer that question.
G No?
F I can't answer that question, to be honest. I really can't.
[107] However, the transcript contains no mention of YVR, Damion Ryan or the circumstances of what may have occurred in April 2015.
[108] Sgt. McConnell has spent the last five years with VPD's gang crime unit. On June 14, 2015, he had a conversation with Cst. Rhode. He believed this was in the late morning/early afternoon.
[109] He was told VPD had arrested young men in a stolen vehicle and believed that one of the men may have been involved in a gang-related incident at YVR.
[110] Sgt. McConnell subsequently sent an email to Cpl. Dhesi at CFSEU. The email was sent at 1:22 p.m. on June 14:
I just wanted to tell you unless you have not been told that VPD believes we have the guy from the incident at YVR in custody. Arrested in unrelated matter.
[111] At the time, Cpl. Dhesi was seconded as an investigator with CFSEU. This included investigating an attempted murder of Damion Ryan at YVR on April 10, 2015 (known as Project E-Prophecy). Among other things, Cpl. Dhesi watched CCTV footage taken from YVR and the Canada Line SkyTrain. She became familiar with the appearance of the persons involved in the YVR incident.
[112] As at June 13, 2015, the suspect in the YVR incident was unidentified. The name Knowah Ferguson had not surfaced in relation to the incident.
[113] To assist with identification, Cpl. Dhesi prepared two bulletins for distribution by CFSEU. The first bulletin was distributed on April 16, 2015. An updated bulletin was circulated on April 28, 2015. The bulletins were sent to a real time intelligence centre in Surrey. From there, they were distributed to police and partner agencies across the province. No specifics of the incident at YVR were included. The language was kept general to maintain the integrity of the investigation and ensure police could move forward in their investigative strategies. At the time the bulletins were distributed, the CFSEU did not believe anyone involved in the incident knew police were investigating the matter. The details stayed with the investigative team.
[114] On June 14, 2015 at 1:22 p.m., Cpl. Dhesi received an email from VPD Sgt. McConnell. She was told VPD believed they had "the guy" from the YVR incident in custody.
[115] At 1:53 p.m., Cpl. Dhesi spoke with Sgt. McConnell. He told her VPD believed an individual they had in custody was involved in the YVR incident. He received this information from Cst. Rhode. Sgt. McConnell also said a stolen vehicle with three individuals was stopped; all three had been arrested; weapons were seized; and, Sgt. McConnell had been told by a canine officer that one of the persons stopped was the person in the bulletin put out by CFSEU.
[116] At 2:06 p.m., Cpl. Dhesi spoke with Det. Campbell. She informed him that she had been told one of the occupants of the F350 may be a person of interest to the CFSEU, as noted in the bulletins. Det. Campbell provided her with details on the VPD investigation. He said VPD members stopped a stolen vehicle and three males were arrested. Post-arrest, Det. Campbell had identified one of the three males as looking similar to a person in the CFSEU bulletin prepared by Cpl. Dhesi in April 2015. He said he was not aware of the CFSEU or YVR investigation until he had been briefed that morning by "one of his analysts", Peggy Irwin.
[117] Cpl. Dhesi was told that a search warrant had been executed at a motel room where the three individuals were believed to be staying. She asked Det. Campbell if the search had already been completed, or whether VPD "could look" for possible items in relation to the YVR incident, including "Islamic clothing", a Chicago Blackhawks baseball cap, black hoodie, blue plastic bag, wig and black pants.
[118] Det. Campbell told her he had already provided the photographs from the bulletin to the persons conducting the search and nothing was located. She was told that ammunition, weapons and phones were found in the F350. Cpl. Dhesi was not sure, from this conversation, whether the CFSEU bulletin(s) was provided to the search team before the warrant was executed. Cpl. Dhesi testified that had items relevant to the YVR incident been seen by officers conducting the search, CFSEU would have applied for its own warrant on the motel room.
[119] She understood the three men were still in custody. She told Det. Campbell that no one was "arrestable" for the YVR incident. The investigation was ongoing. She had not seen the accused in person and she wanted to do her own comparison of the accused to the CFSEU material. She was told the three males would likely be released and there were other investigative strategies she wanted to employ. Moreover, Damion Ryan had not been interviewed.
[120] Cpl. Dhesi told Det. Campbell that if the three males were going to be released, CFSEU would like to a put a surveillance team in place.
[121] At 2:17 p.m., she received a forwarded email from Det. Campbell enclosing an email from Det. Campbell to Dets. Machuik and Gow. It included, as an attachment, a photograph taken from one of the April 2015 CFSEU bulletins and the book-in photo of the accused. Cpl. Dhesi viewed the two photographs. She saw similarities; however, she wanted to see the accused in person. As a next step in the CFSEU investigation, she wanted to attend the Vancouver Jail and do an in-person comparison between the accused and the person she saw on the CCTV footage from the YVR incident.
[122] At 2:29 p.m., Cpl. Dhesi received another email from Sgt. McConnell. He told her that Cst. Rhode thought one of the three occupants of the F350 "looked similar" to the person in the CFSEU bulletin. Photographs were attached to the email, showing the three males in custody. Cpl. Dhesi still wanted to see the accused in person.
[123] Cpl. Dhesi spoke to Det. Campbell again at 2:51 p.m. She advised him that CFSEU might put a surveillance team in place for the three males if released. She also told him of other investigate techniques CFSEU might employ in support of their ongoing investigation into the YVR incident.
[124] At 5:33 p.m., Cpl. Dhesi went to the Vancouver Jail with another officer from CFSEU. The purpose of doing so was to view the accused and see if he matched the person of interest captured in the April 2015 video footage.
[125] Cpl. Dhesi met with Det. Campbell about the viewing. At 6:16 p.m., the accused was brought out from cells by Cst. Machuik to the booking area. Cpl. Dhesi believed he was the same male from the CFSEU bulletins in April 2015. Det. Campbell did not speak with the accused before he was brought out of cells.
[126] From Cpl. Dhesi's perspective, the accused's structure and height was similar to the male in the CFSEU photos; he was not muscular; he was thin; there was a few days of growth on his face; he had a baby face; thin fingernails; he was using his right hand, making him a right-handed individual consistent with the April 2015 CCTV footage; he was "younger" and a black male. Cpl. Dhesi was able to see a front and side profile of the accused. Having seen him in person, she believed the accused was the person involved in an attempted murder of Damion Ryan at YVR.
[127] The accused was returned to his cell at 6:20 p.m. There is no indication he was told why he was removed from cells or the purpose of being made visible to Cpl. Dhesi and the other CFSEU officer. There is no indication he was told, again, of his right to counsel or provided with an opportunity to speak with a lawyer before the viewing.
[128] Cpl. Dhesi had no intention of arresting the accused for the YVR incident, although she believed she had reasonable and probable grounds to conclude he was the unidentified male in the CCTV footage she had viewed. There were numerous investigative avenues yet to be taken, including an interview of Damion Ryan. Cpl. Dhesi also wanted to gather physical evidence if possible, including through searches of other premises or cast-off DNA. She did not believe she had enough to put a case forward. In her view, the YVR investigation remained ongoing.
[129] In cross-examination, Cpl. Dhesi acknowledged that things said by the accused in his interview with the VPD would have been of interest to her. For example, the length of time he had been in Vancouver prior to June 14, 2015 and his source of income. In fact, CFSEU requested a transcript of the custodial interview after-the-fact.
[130] At 7:37 p.m. on June 14, 2015, Cpl. Dhesi testified that she spoke with Cst. Mah of VPD. She understood he was the person who conducted the search at City Centre. She said he told her that "Islamic clothing", a blue bag, a Chicago Blackhawks hat or a black hoodie were not located during the search at City Centre. Cpl. Dhesi did not know, and does not recall asking Cst. Mah, whether he viewed the CFSEU bulletin in which these items were highlighted.
[131] However, it was apparent to her that he knew what she was talking about. Cpl. Dhesi understood from this conversation that Det. Russell was the affiant for the search warrant and that he asked Cst. Mah to search for the above-noted items in Room 127 at City Centre. She did not know whether this request was made of Cst. Mah before the Information to Obtain for the search warrant was sworn.
[132] Cst. Mah told Cpl. Dhesi he did not have anything in his police notes about looking for the YVR-related items. She understood his reason for the absence of notes to be that he did not want to "compromise" the CFSEU investigation.
[133] Once he emerged from the F350, the accused was arrested, taken into custody and thereafter detained by police. There is no dispute that the pre-conditions for the application of ss. 9 and 10 of the Charter were met, as defined in R. v. Grant, [2009] 2 S.C.R. 353.
[134] The accused does not argue that his arrest and detention were arbitrary (contrary to s. 9). Instead, the Charter complaints from June 14, 2015 are exclusively focused on alleged non-compliance with ss. 10(a) and (b), and the informational and implementational obligations mandated under the right to counsel.
[135] The accused argues he was not advised of his right to counsel without delay at roadside and police wrongly asked questions of him before the right was provided.
[136] It is his position that apart from initially identifying himself to Det. Adams, any answers provided after she ran the CPIC and PRIME enquiries on the police computer system were improperly elicited. She should not have asked further questions of him until satisfied that he had been Chartered, given the standard police warning and provided with access to counsel. The accused argues that because of these infringements, the information he gave Det. Adams about the whereabouts of his identification, his connection to City Centre, and his ordinary place of residence were not lawfully open for use by VPD in subsequently gathering evidence by way of judicial authorization. Nor are they admissible at trial. This information was obtained unconstitutionally.
[137] The accused also argues that police failed to provide him with timely access to counsel once he asserted a desire to speak with a lawyer. Although arrested shortly after 2:30 a.m., he did not speak with legal counsel until 11:33 a.m. on June 14.
[138] Finally, the accused argues that post-arrest and before the custodial interview with Det. Gow, his "jeopardy" changed in a material way. He claims that although arrested at roadside for stolen property and firearms offences, VPD quickly began to suspect that the accused was the unidentified male in the CFSEU investigation involving an alleged attempted murder of Damion Ryan.
[139] The accused says that the steps taken by VPD to confirm similarities between him and CFSEU's person of interest in the April 2015 incident, as well as VPD's active dialogue and information sharing with CFSEU on the afternoon of June 14, were indicative of a fundamental and discrete change in the nature of the investigation against him post-arrest.
[140] It is his position that once VPD believed there was a connection between the accused and the YVR incident, the investigators should have told the accused what was going on before he was interviewed by Det. Gow so that when he spoke with legal counsel, he could receive meaningful advice as informed by the entirety of the circumstances surrounding his ongoing detention.
[141] This is especially so, says counsel for the accused, given the age of Mr. Ferguson and VPD's understanding that he had no prior involvement with the criminal justice system. He was a vulnerable detainee.
[142] If VPD did not solidify its belief of a nexus between the accused and the CFSEU investigation until after the custodial interview started, the accused says the investigators should have nonetheless stopped the interview, informed the accused of the new development or belief and reiterated his right to counsel, providing him with a second opportunity to speak with a lawyer. This was necessary to ensure that the accused could make an informed decision on whether to seek further legal advice and/or continue speaking with police, rather than running the risk of saying something incriminatory on the CFSEU matter because he was unaware of the full context of the interview.
[143] The accused argues that without telling him he was suspect in the CFSEU investigation, either before he spoke with a lawyer at 11:33 a.m. or during a reiteration of the ss. 10(a) and (b) rights, any information obtained from the accused after the "change in jeopardy" was not open for use by police in support of subsequent applications for judicial authorization. Nor is it admissible at trial.[1]
[144] The Crown concedes violations of the accused's s. 10(b) right at roadside and prior to his custodial interview. The concession encompasses three forms of non-compliance:
a) the accused was not told of his right to counsel until almost one hour after he was arrested and detained;
b) Det. Adams failed to "hold off" on asking questions of the accused before he was Chartered, warned and provided with an opportunity to exercise the right to counsel; and,
c) contact with a lawyer was not facilitated until about nine hours after he was first taken into custody.
[145] However, the Crown disputes any notion of a "change in jeopardy" before the custodial interview, or post-commencement. From the Crown's perspective, June 14, 2015 was singularly focused on the VPD investigation of the F350. The accused was not confirmed as the unidentified male in the CFSEU bulletins until after 6:00 p.m. By that time, the custodial interview had long passed.
[146] The Crown argues that the VPD officers who interacted with the accused on June 14 were doing so in relation to the VPD file only. That was the matter under investigation and the officers did nothing with the intention of furthering the CFSEU file on the YVR incident.
[147] In support of its position, the Crown points to the fact that none of the VPD officers were involved in the CFSEU investigation; the lead investigator (Det. Campbell) had no knowledge of the CFSEU investigation until his discussion with Peggy Irwin; Det. Gow, who conducted the custodial interview, had no knowledge of the CFSEU matter; and, the questions put to the accused did not, in any way, touch upon an attempted murder of Damion Ryan.
[148] The Crown says this was not a situation in which an obligation to inform the accused that he was under investigation for a new or different offence arose prior to his contact with legal counsel at 11:33 a.m., or, as part of a required reiteration of the ss. 10(a) and (b) rights.
[149] In determining whether a "change in jeopardy" has occurred, the Crown says the Court must pay close attention to the investigative purpose of the detention, as well as the subjective focus of the officers who are interacting with the detainee. In this case, the enquiries made directly of the accused on June 14 had nothing to do with the CFSEU investigation.
[150] Section 10 of the Charter provides:
10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
[151] The accused alleges violations of ss. 10(a) and (b). He bears the onus of establishing any infringement on a balance of probabilities: R. v. Harper, [1994] 3 S.C.R. 343; R. v. Ashby, 2013 BCCA 334 at para. 68.
[152] However, where there is delay in affording a detainee the opportunity to access counsel after s. 10(b) is appropriately in play, the Crown bears the burden of showing that the delay was reasonable: R. v. Duerksen, 2018 BCCA 46 at para. 25.
[153] As noted, the Crown concedes three ss. 10(b) violations. In my view, the concessions are well-founded in light of the evidence on the voir dire.
[154] First, the accused was taken into custody as soon as he emerged from the F350. This was shortly after 2:30 a.m. on June 14, 2015. I find as a fact that he was not informed of his right to counsel until 3:20 a.m., when Cst. Syzlowski learned from the wagon driver that the accused had not been Chartered and warned. He took immediate steps to meet these requirements.
[155] In R. v. Suberu, 2009 SCC 33, the Supreme Court explained at para. 2 that:
… from the moment an individual is detained, s. 10(b) [of the Charter] is engaged and, as the words of the provision dictate, the police have the obligation to inform the detainee of his or her right to counsel "without delay". The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter.
[156] The evidence on the voir dire offers no justification for the delay in advising the accused of his s. 10(b) right beyond what may have been inherently necessary to get control of the accused and his associates to ensure officer and public safety.
[157] Det. Adams testified that the accused was brought to his feet in handcuffs within five to 10 minutes after emerging from the F350. On the evidence, I find that he should have been Chartered and warned by 2:45 a.m., or shortly thereafter. For comparative purposes, his associate, Gino McCall, was Chartered and warned at 2:43 a.m. Instead, the accused waited another 35 minutes before hearing about the right to counsel.
[158] The second Crown concession arises from the fact that even though Det. Adams did not provide the accused with his right to counsel (or make enquiries about whether the ss. 10(a) and (b) rights were properly administered by someone else), she proceeded to question him about his identity, where he was staying and the location of any identification documents.
[159] Appropriately, the Crown acknowledges that apart from Det. Adams' initial request for a name and date of birth, she was obliged to "hold off" on any further attempts to elicit information from the accused until he was advised of his right to counsel and given a reasonable opportunity to exercise the right if desired.
[160] The law on this point is clear. See, for example, R. v. Sinclair, 2010 SCC 35 at para. 27:
Section 10(b) fulfills its purpose in two ways. First, it requires that the detainee be advised of his right to counsel. This is called the informational component. Second, it requires that the detainee be given an opportunity to exercise his right to consult counsel. This is called the implementational component. Failure to comply with either of these components frustrates the purpose of s. 10(b) and results in a breach of the detainee's rights: Manninen. Implied in the second component is a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult counsel. The police obligations flowing from s. 10(b) are not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duties on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended: R. v. Tremblay, [1987] 2 S.C.R. 435, at p. 439, and R. v. Black, [1989] 2 S.C.R. 138, at pp. 154‑55. [Emphasis added.]
[161] I find as a fact that Det. Adams failed to "hold off questioning" as required. In my view, the questions posed of the accused after Det. Adams initially entered his name and date of birth into the police computer system should not have been asked of him before he had a reasonable opportunity to contact a lawyer. This includes the questions about documentation supporting his identification; its whereabouts; where he ordinarily resides (Ontario); and details about where he was staying in Vancouver.
[162] The third conceded breach arises out of delay in facilitating contact with counsel to obtain legal advice. In its written submissions, the Crown acknowledges that the accused arrived at the Vancouver Jail around 3:45 a.m. He was placed in a cell. He was removed at 4:54 a.m. to speak with a lawyer. He was not able to do so. Instead, he left a message on an answering machine. The accused was placed back in his cell within a minute or so, and was not put in touch with a lawyer until 11:33 a.m.
[163] This was nine hours after he was first taken into custody.
[164] The right to counsel does not mandate "instantaneous access" to a lawyer following detention: R. v. Ashby at paras. 70–73.
[165] However, as explained in R. v. Taylor, 2014 SCC 50 at paras. 21–25:
The purpose of the s. 10(b) right is "to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights" … The right to retain and instruct counsel is also "meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination" … Access to legal advice ensures that an individual who is under control of the state and in a situation of legal jeopardy "is able to make a choice to speak to the police investigators that is both free and informed" …
…
The duty to inform a detained person of his or her right to counsel arises "immediately" upon arrest or detention … and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee's request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances … Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.
This means that to give effect to the right to counsel, the police must inform detainees of their s. 10(b) rights and facilitate access to those rights where requested, both without delay … [Internal references omitted. Emphasis added.]
[166] On the evidence, I find that access to legal counsel was not facilitated "at the first reasonably available opportunity". The Crown does not claim that the nine-hour delay was justified or otherwise "reasonable in the circumstances". The VPD did not exercise due diligence in fulfilling its implementational duties under s. 10(b) of the Charter and it breached this aspect of the right.
[167] The accused argues that his ss. 10(a) and (b) rights were violated a fourth way. He says it was wrong for VPD to not tell him he was believed to be the unidentified male under investigation by CFSEU, and ensure he had opportunity to seek legal advice on this additional matter before being interviewed by Det. Gow.
[168] The accused says by the time he was transported to Vancouver Jail at 3:20 a.m., Cst. Primerano had concluded that the accused was the male in the April 2015 CFSEU bulletins. Cst. Rhode agreed with Cst. Primerano after conducting his own comparison based on personal observations, as well as a photograph he took of the accused at roadside. Sgt. Friesen was made aware of this belief and asked to pass the information along because of its recognized "importance".
[169] By 12:41 p.m. on June 14, 2015, the lead investigator on the VPD file had reached a similar conclusion following his conversation with the crime analyst, Peggy Irwin. In furtherance of this conclusion, Det. Campbell sent an email to Dets. Gow and Machuik asking that they compare the accused to the photo from the CFSEU bulletin.
[170] The accused says once Csts. Primerano and Rhode reached the conclusions they did, based at least in part on a photograph taken by Cst. Rhode for the purpose of a comparative analysis, the nature of the investigation against him palpably shifted.
[171] VPD officers were not only investigating the accused's involvement with the F350 and the seized firearms, but actively considering the accused within the context of the YVR investigation; they were exploring his possible connection to that incident; and, most importantly, they were using their own investigation and access to the accused as a means by which to gather information specific to it.
[172] Not very long after the arrest, a link between the accused and the alleged attempted murder of Damion Ryan had been established, at least in the institutional mind of the VPD. This link grew stronger with Peggy Irwin's involvement in the analysis and the sharing of information with Det. Campbell. By 12:41 p.m., Det. Campbell was asking other VPD officers, Dets. Machuik and Gow, to actively engage in further exploration.
[173] By 1:22 p.m. on June 14, VPD was sharing its conclusions about the accused with CFSEU. Sgt. McConnell sent an email to Cpl. Dhesi telling her that "VPD believes we have the guy from the incident at YVR in custody".
[174] I accept the evidence of Cpl. Dhesi that VPD was also sharing the results of its search at City Centre with CFSEU and there was discussion between the two agencies about whether anything seen during the search matched items under consideration by CFSEU.
[175] As the day wore on, Cpl. Dhesi was in turn informing VPD of the investigative avenues that CFSEU wanted to explore as against the accused should he and his two associates be released from custody.
[176] After 6:00 p.m. on June 14, VPD granted CFSEU direct access to the accused so that Cpl. Dhesi and another officer from CFSEU could make their own assessment as to whether he was the individual they were looking for.
[177] In R. v. Sinclair at para. 51, a majority of the Supreme Court explained that where an:
… investigation takes a new and more serious turn as events unfold, [the initial advice given to the detainee] may no longer be adequate to the actual situation, or jeopardy, the detainee faces. In order to fulfill the purpose of [s.10](b), the detainee must be given a further opportunity to consult with counsel and obtain advice on the new situation.
[178] A failure to advise the detainee of the "new and more serious turn" in the investigation and provide a "further opportunity to consult" will amount to a Charter breach where:
… it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct. This is consistent with the purpose of s. 10(b) to ensure that the detainee's decision to cooperate with the police or not is informed as well as free …: R. v. Sinclair at para. 57. [Emphasis added.]
[179] As a matter of common sense, the ongoing receipt of information surrounding the details of an alleged offence, the detainee's participation in the offence, their relationship with relevant witnesses and/or other persons of interest, and the detainee's background will form a natural part of the active investigative process. Moreover, sometimes the information gathered by police as the investigation unfolds might suggest or touch upon the commission of other offences, past or present, or the detainee's suspected involvement in unrelated matters, perhaps even matters for which a concurrent investigation by another police agency is actively underway. This is inherent to the nature of the information-gathering process.
[180] It also stands to reason that police will develop theories or hypotheses as their investigation unfolds; they will draw inferences from the information gathered; they will "put two-and-two together"; and, in compiling their file and pursuing all possible avenues of enquiry, investigators may reach out to other agencies to access their knowledge of the suspect, potentially related incidents and/or information establishing a nexus between the circumstances under investigation and other offences. The manner in which the VPD investigation proceeded in this case, as borne out by the evidence on the voir dire, exemplifies the point.
[181] It is not the case that every new or additional step taken in an investigation once it has commenced, inference drawn or conclusion reached, will effect an investigative change within the meaning of R. v. Sinclair, such that a reiteration of the rights mandated under ss. 10(a) and (b) of the Charter is necessitated and the detainee must be given another opportunity to contact legal counsel.
[182] This is so even where the ebb and flow of an investigation results in "exploratory" questions being put to a detainee for an unrelated offence: R. v. Jean, 2018 ABCA 7, 2018 CarswellAlta 23 (CA) at para. 27.
[183] Instead, as noted at para. 55 of R. v. Sinclair:
The change of circumstances … must be objectively observable in order to trigger additional implementational duties for the police … [there must be] objective indicators that renewed legal consultation was required to permit [the detainee] to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so. [Emphasis added.]
[184] On the entirety of the evidence, I agree with the defence that a "change of circumstances" sufficient to trigger additional s. 10 duties specific to the YVR incident arose on June 14, 2015. However, it is my view that the obligation to bring the YVR connection into VPD's interaction with the accused, and inform him of it, did not crystallize within the meaning of R. v. Sinclair until Cpl. Dhesi and another CFSEU officer arrived at the Vancouver Jail for the purpose of viewing the accused in person.
[185] I find as a fact that at 5:33 p.m., Cpl. Dhesi went to the Vancouver Jail and met with Det. Campbell for the specific and intended purpose of viewing the accused in relation to the YVR investigation. At 6:16 p.m., the accused was brought out from cells by Cst. Machuik to the booking area. The objective of doing so was to facilitate a viewing by CFSEU. As a result of these steps, Cpl. Dhesi was able to see a front and side profile of the accused. She was given in-person access to him by virtue of the fact that he was under detention. Having personally viewed the accused, she formulated reasonable and probable grounds to believe he was the individual involved in the alleged attempted murder of Damion Ryan at YVR in April 2015.
[186] The accused was returned to his cell at 6:20 p.m. There is no evidence he was told why he was removed from cells; who was going to be viewing him; and for what purpose. Det. Campbell, the lead investigator on the VPD file, said he did not speak with the accused before the viewing occurred. Det. Machuik has no recollection of the viewing. There is no indication that Mr. Feguson was told VPD believed him to be the unidentified male from the CFSEU bulletins; that VPD had shared this conclusion with CFSEU; or that officers from CFSEU were physically present to confirm whether he matched the person in the CCTV footage and photographs from YVR.
[187] By 5:33 p.m. on June 14, 2015, I find as a fact that VPD was actively assisting CFSEU in furtherance of the YVR investigation on the understanding, and its own stated belief, that the accused was a suspect in that investigation. The VPD investigators had moved beyond "exploratory" in their consideration of the accused within the context of the YVR matter.
[188] In my view, before removing the accused from his cell to facilitate the CFSEU viewing, Det. Campbell, Det. Machuik or some other VPD officer was obliged to advise the accused of the fact that enquiries were being made in respect of his possible involvement in the YVR incident (s. 10(a)); reiterate his right to counsel (s. 10(b)); and, give him another opportunity to speak with a lawyer to make a fully informed determination on whether he co-operated with the viewing (s. 10(b)).
[189] This is particularly so in light of the young age of the accused and his lack of previous experience with the criminal justice system, a fact that was known to VPD.
[190] The Crown argues that the youthfulness of the accused and his personal vulnerabilities play no part in the "change of jeopardy" analysis. I disagree. Determining whether a violation of ss. 10(a) or (b) has been shown requires a contextual analysis. The personal characteristics of the detainee will necessarily inform the consideration. The right to counsel has long been understood to require a purposive interpretation and application: R. v. Sawatsky, [1997] O.J. No. 3561 (C.A.).
[191] The accused's "jeopardy" changed by virtue of the planned viewing, in a material way. Cpl. Dhesi made clear to VPD that she wanted to confirm the accused's identity as the YVR suspect in-person, with a view to pursuing other investigative avenues against him.
[192] Moreover, the nature of the viewing was such that of its own accord, it arguably necessitated a reiteration of the ss. 10(a) and (b) rights. As explained at para. 50 of R. v. Sinclair:
… Non-routine procedures, like participation in a lineup or submitting to a polygraph, will not generally fall within the expectation of the advising lawyer at the time of the initial consultation. It follows that to fulfill the purpose of s. 10(b) of providing the detainee with the information necessary to making a meaningful choice about whether to cooperate in these new procedures, further advice from counsel is necessary … [Internal references omitted.]
[193] In my view, what happened to the accused in this case was the functional equivalent of participating in a lineup.
[194] The accused argues that a breach of the right to counsel based on a "change in jeopardy" occurred much earlier than 5:33 p.m., when Csts. Primerano and Rhode engaged in their comparative analysis at roadside. At the very latest, it changed following Det. Campbell's discussion with Peggy Irwin and his decision to send the 12:41 p.m. email to Dets. Gow and Machuik.
[195] I accept that well before the CFSEU viewing, VPD officers were drawing inferences of a possible connection between the accused and the YVR incident based on their access to him and the CFSEU material. They were discussing the matter amongst themselves and at least some of them appreciated the "importance" of the information in their hands. I also accept that at 12:41 p.m., Det. Campbell intentionally tried to use the custodial interview of the accused as an opportunity for a closer, in-person comparison.
[196] However, I find as a fact that the email sent to Dets. Gow and Machuik was not accessed by them until after the interview with the accused. Moreover, on the face of the interview transcript, there is no attempt by Det. Gow to ask questions of the accused, or gather information from him, specific to the YVR incident.[2] Det. Campbell's attempt to garner their assistance had no impact.
[197] There was some suggestion from Cpl. Dhesi that the search of Room 127 of City Centre may have included a search for items specific to the YVR incident. Or, at the very least, that the search was conducted with items relevant to the YVR incident in back-of-mind. However, Cst. Mah denied any knowledge of this occurring and Cpl. Dhesi's evidence about what she was told by Det. Campbell and/or Cst. Mah in relation to the search is second-hand and equivocal.
[198] Cpl. Dhesi's impression of what may have occurred during the search process, based on information received, is as equally consistent with a post-facto comparison by VPD of what was seen or found during the search, as it is with a decision made by VPD, in advance, to actively look for items relating to the YVR incident. As such, her evidence on this point is of minimal value. I cannot be sure of which of these two scenarios applies.
[199] I accept that a co-mingling of investigations, even if not deliberate, can trigger the "change in jeopardy" spoken of in R. v. Sinclair and mandate a reiteration of the rights under ss. 10(a) and (b) of the Charter. Active enquiries by one investigative agency into a detainee's potential involvement in an offence other than the one over which the investigators have jurisdiction, even if not requested by the other agency, may provide "objective indicators" that a second (or further) opportunity to consult with legal counsel is required to allow the detainee a meaningful choice on whether to cooperate.
[200] In his evidence, Det. Campbell appeared to be of the view that as long as the F350 investigation lay within VPD's investigative jurisdiction, and the YVR incident lay with CFSEU, they should be treated as separate and distinct investigations for all purposes, including any assessment of whether there was a "change in jeopardy" within the meaning of R. v. Sinclair.
[201] This perspective overly simplifies the analysis and fails to appreciate that the issue is not whether the persons with custodial control over the detainee have jurisdictional authority to investigate a new and different offence, or are intentionally trying to advance an already-existing investigation on a different offence. It is not a subjective enquiry. Rather, the question to be asked under ss. 10(a) and (b) of the Charter is whether, on the evidence, there were "objective indicators" that "renewed legal consultation was required" to allow the detainee to make a meaningful choice on whether to speak with a lawyer and/or cooperate with questions put to him, or other forms of investigative enquiry.
[202] Had the evidence on the voir dire supported a factual finding that the VPD actively used the City Centre search as an opportunity to look for items displayed in the CFSEU bulletins, and/or the 12:41 p.m. email from Det. Campbell was acted upon during the custodial interview, there would have been a principled basis for me to conclude in favour of a discernable "change" in the nature of the VPD investigation within the meaning of R. v. Sinclair, and that this "change" occurred before or, at the latest, shortly after commencement of the custodial interview.
[203] However, on the evidence, I am not persuaded that a "change in jeopardy" occurred until 5:33 p.m. Up to that point, the enquiries made by VPD were merely exploratory in nature. However, after 5:33 p.m., the VPD was using its position as jailer of the accused to actively assist the CFSEU in respect of their investigation, and, this assistance related to a different and more serious alleged offence––attempted murder.
[204] In this sense, the case before me is substantially different than the two decisions relied upon by the defence in support of its position: R. v. Black, [1989] 2 S.C.R. 138 and R. v. Evans, [1991] 1 S.C.R. 869.
[205] On the facts of R. v. Black, as summarized in the Supreme Court's decision, the appellant was arrested for attempted murder (or a "stabbing") and taken into police custody. The arrest arose out of an incident involving the appellant's neighbour. Upon her arrival at the police detachment, the appellant spoke with a lawyer. Approximately one hour and forty minutes later, she was told that the neighbour died and the appellant would be charged with first degree murder.
[206] The appellant asked to contact the lawyer she previously spoke with. Attempts were made to reach him. They were unsuccessful. The appellant was asked if she wanted to speak to someone else. She said "no" and reiterated that she wanted to talk to the same lawyer.
[207] The appellant was given the opportunity to speak with her grandmother. This call lasted for about five or six minutes. After that, she began to converse with one of the police officers. She was asked about the location of the knife and said it was at home. She was asked to tell the officer "the whole story". She agreed to provide a statement. It was lengthy and inculpatory. Later, the appellant was escorted by police back to her apartment. She pulled a knife out of a kitchen drawer and handed it to police, indicating it was the murder weapon.
[208] In R. v. Black, the Supreme Court found that the appellant's right to counsel was violated when police asked her about the whereabouts of the knife and to tell "the whole story". Among other things:
When the appellant contacted [her counsel of choice] she had been told that she was under arrest for attempted murder, or, depending upon which evidence one accepts, for a "stabbing". This is significantly different from a charge of first degree murder. First, while the Crown must prove that the accused intended to kill the victim in a charge of attempted murder … such a strict mens rea requirement is negatived in some instances in ss. 212 and 213 of the Criminal Code … the sections which set forth the elements necessary to sustain a murder conviction. Second, in the case of a "stabbing" or an attempted murder, the victim may be able to testify to either inculpate or exculpate the accused. Obviously, this is not possible in the case of a murder charge. Third, and perhaps most importantly, the psychological impact of a first degree murder charge on an accused will be much more severe than in the case of a charge for attempted murder or "stabbing". There is, after all, no more serious offence known to our law than first degree murder: R. v. Black, at p. 153. [Internal references omitted.]
[209] In R. v. Evans, police arrested the appellant for a drug offence "in the hope" he would provide evidence against his brother, who police believed had committed two murders. He was told of his right to counsel, but said he did not understand what it meant. No attempts were made to further explain the right to counsel and facilitate access to a lawyer before police began to interview the appellant.
[210] During the first interview, the appellant became the prime suspect in the murders. Shortly thereafter, he was told he was being questioned in respect of the killings. However, the right to counsel was not reiterated:
The focus of the investigation changed from a drug offence to murder. Nothing more, however, was said about counsel. Two more police interviews followed, as well as a cell interview by an undercover agent, a "show and tell" expedition to the scenes of the crimes, and an interview by a police physician -- all without the benefit of counsel … R. v. Evans at p. 889.
[211] When speaking with the undercover agent, the appellant openly mused about whether he would be given an opportunity to speak with a lawyer. He expressed "hope" it would occur: "I hope so. Cause with a lawyer maybe things could go a little better with me, or for me I should say": R. v. Evans, at p. 882.
[212] Later in the evening, the appellant:
was asked if he wanted to speak with a lawyer. He stated that he did. He was directed to a telephone and provided with a phone book but returned about one minute later stating that he was unable to reach a lawyer; he had been told on the telephone that his lawyer was on vacation and could not be reached at that time. [Police] then told the appellant that he could either contact his lawyer later or continue with the written statement. The appellant stated that he would proceed with the written statement. During the next hour the appellant wrote a two-paragraph statement in which he confessed to the two killings …: R. v. Evans at p. 883.
[213] The majority in the Supreme Court found more than one violation of the appellant's right to counsel. This included a breach of s. 10(b) that:
… occurred when the police failed to reiterate the appellant's right to counsel after the nature of their investigation changed and the appellant became a suspect in the two killings … there is a duty on the police to advise the accused of his or her right to counsel a second time when new circumstances arise indicating that the accused is a suspect for a different, more serious crime than was the case at the time of the first warning. This is because the accused's decision as to whether to obtain a lawyer may well be affected by the seriousness of the charge he or she faces …: R. v. Evans at p. 894.
[214] In both R. v. Black and R. v. Evans, police actively sought to gather evidence against the two detainees specific to offences other than the ones for which they were initially arrested, detained and/or had access to counsel. Such was not the case here, at least until the CFSEU viewing.
[215] Relying on R. v. Sawatsky at para. 36, the accused submits that although the circumstances surrounding VPD's exploration of a connection between the accused and the YVR incident may not have been as robust, or pointed, as the investigative enquiries made in R. v. Black and R. v. Evans, it is "appropriate to decide close cases in favour of the reiteration of the s. 10(b) rights".
[216] I do not take issue with that proposition. However, R. v. Sawatsky was a case in which police actively questioned the detainee about an offence that was unrelated to the one for which she was in custody. Within this context, Doherty J.A., writing for the Court, emphasized the importance of a detainee not only knowing the reason for their detention, but "why the police wish to question [the detainee] or involve [them] in some other investigative process". [Emphasis added].
[217] Again, at para. 36 of R. v. Sawatsky:
The administration of criminal justice is better served by a restatement of the detainee's s. 10(b) rights which is a little early than one which is too late to serve its intended purpose. Once the police have a realistic indication that a detainee may incriminate herself in a different and unrelated offence, the police should, if they wish to pursue that area of investigation, reiterate the detainee's right to counsel and connect that right to the new allegations. [Emphasis added.]
[218] On the evidence before me, I have found that the VPD investigation against the accused did not actively, or concretely, shift to factually involving the accused in an "investigative process" relating to the CFSEU matter until the in-person viewing by Cpl. Dhesi.
[219] As such, I am satisfied this was not a "close case" of the kind contemplated in R. v. Sawatsky.
[220] For the reasons provided, I have found four violations of ss. 10(a) and (b) of the Charter between the arrest and detention of the accused at roadside and the CFSEU viewing on June 14, 2015.
[221] For clarity, these violations consist of:
a) a failure to advise the accused of the right to counsel until 3:20 a.m.;
b) a failure to "hold off" on questioning the accused at roadside until he was provided with his right to counsel and given reasonable opportunity to access a lawyer for the purpose of preliminary legal advice;
c) a nine-hour delay in facilitating contact with a lawyer; and,
d) a failure to reiterate ss. 10(a) and (b) to the accused once Cpl. Dhesi and another CFSEU officer arrived at the Vancouver Jail and sought access to the accused for the purpose of a personal viewing.
[222] The accused has given notice of a challenge to the search warrant that was obtained by VPD for Room 127 of the City Centre Motel.
[223] Counsel have agreed that information elicited by Det. Adams from the accused at roadside in breach of his right to counsel must be excised from the Information to Obtain for the purpose of reviewing the warrant.
[224] The sufficiency of the warrant, as may be impacted by the excision, will be addressed in Pre-trial Application #2.
[225] The extent to which other remedies may be available to the accused resulting from the ss. 10(a) and (b) infringements, pursuant to s. 24(2) of the Charter or otherwise, is to be addressed at a later time. The accused has given notice that he intends to argue, on any subsequent s. 24(2) assessment, that police have demonstrated a "pattern" of disregard for the accused's Charter rights.
[226] An assessment of the seriousness of the found breaches will form part of this later analysis.
DeWitt-Van Oosten J.
[1] The Crown has advised the Court that it does not intend to introduce the statement provided by the accused to Det. Gow as evidence at trial.
[2] Common law voluntariness of the accused's statement to Det. Gow was not addressed during the voir dire. As noted, the Crown does not seek to tender this statement at trial. The absence of proof of voluntariness does not preclude the Court from relying on the content of the statement to decide the right to counsel issues on the voir dire. See R. v. Paterson, 2017 SCC 15 at para. 18: "… the confessions rule should not apply to statements tendered in the context of a voir dire under the Charter". I note that defence counsel did not object to a tendering of the statement on the voir dire without proof of voluntariness, or argue that R. v. Paterson has no applicability.