COURT FILE NO.: 01-037
DATE: February 18, 2004
|
B E T W E E
N: |
) |
|
|
|
) |
|
|
HER MAJESTY THE QUEEN |
) ) |
John Benson and Trevor Jukes, for the Crown |
|
|
) |
|
|
|
) |
|
|
- and
- |
) |
|
|
|
) |
|
|
|
) |
|
|
|
) |
|
|
JUSTIN CARAMBETSOS |
) ) ) |
David Gibson, for the Accused |
|
|
) |
|
|
Accused |
) ) |
|
|
|
) |
|
|
|
) |
HEARD: January 12 – 30, February 16 – 18, 2004 in Kenora |
** PUBLICATION BAN IN EFFECT
**
RULING ON DEFENCE APPLICATIONS
FOR EXCLUSION OF EVIDENCE AND STAY
THE HONOURABLE MR.
JUSTICE P. B. HAMBLY
I Introduction
[1] Justin Carambetsos is charged with manslaughter on Max Kakegamic on October 4, 2000. He was committed to stand trial after a preliminary hearing on June 29, 2001. I heard pre-trial motions brought by the accused over six weeks in the first six months of 2003 commencing on January 20 in which he sought to exclude evidence and to stay the proceedings. I denied the motions in a ruling dated June 27, 2003. The accused brought a further motion to introduce evidence of another suspect. I allowed this motion in my ruling dated December 3, 2003.
[2] Jury selection commenced on Monday, January 12, 2004. The crown is represented by Mr. J. Benson and Mr. T. Jukes. The accused is represented by Mr. D. Gibson. The crown challenged for cause. A jury was selected. The trial commenced Wednesday, January 14, 2004. On Friday, January 16 the accused renewed his application for a stay as a result of new evidence that emerged. The jury was excused. The evidence and submissions on the stay application were completed on Thursday, January 29, 2004. On Friday, January 30 I declared a mistrial. I reserved my ruling on the stay application. I made a ruling permitting the accused to reargue the motion to exclude the evidence based on the new evidence that had emerged. Notwithstanding my declaration of a mistrial, the parties have consented to my hearing the applications and to all the evidence that I have heard applying to these applications. The parties are also agreed that my previous rulings are void as a result of the mistrial. I will not repeat the summary of the evidence that is contained in my two prior rulings except as required to develop the argument in this ruling.
II Issues
The
issues are as follows:
1. Whether the boots seized by the police from the accused should be excluded from evidence pursuant to s. 24(2) of the Charter by reason of his wrongful arrest resulting in a breach of section 9 and other Charter breaches.
2. Whether police misconduct constitutes a breach of section 7 of the Charter and an abuse of process.
3. If the answer to this question is yes, is there a remedy which could guarantee the accused’s right to a fair trial or must there be a stay.
I have decided that if there was a trial, the accused’s boots should be excluded from evidence. Police misconduct does constitute a breach of s. 7 of the Charter and an abuse of process. A stay is the appropriate remedy.
III
Overview
[3] On the third day of the trial it was discovered through Jorgensen’s evidence that Carambetsos had made a statement to White on October 4, 2000 in the police station. Carambetsos told White that Max Kakegamic was bleeding in Maria Campenella’s apartment before he touched him. He said that he removed him onto Matheson Street, where he left him alive and conscious. He did not assault him. White disclosed this statement to the investigative team but no one disclosed it to the crown and hence it was not disclosed to the defence. The defence submits that White was untruthful to the court at the preliminary hearing and in his evidence at the pretrial motions when he said that Carambetsos did not make a statement. The credibility of White, Favreau and Ratchford has been destroyed.
[4] The defence submits that there were never grounds to arrest Carambetsos for anything. Any grounds that there may have been disappeared when he made a detailed exculpatory statement. This should have resulted in his release pending an objective and thorough investigation including Danny Favreau as being the person who assaulted and killed Max Kakegamic. This did not occur. The police had no authority to seize the accused’s boots. The pretrial motion to exclude the boots should be reviewed and allowed.
[5] Until Favreau testified in January 2003 on the pretrial motions, the position of the crown was that Heather Gunn said that Danny Favreau was in the area to White and Favreau in the police car on October 4, 2000. Only Favreau recalled this. No one had a note of it. Danny Favreau was not a suspect. At the pre-trial motions in January 2003 Favreau said he was a suspect but he took action to eliminate him as a suspect. This had not been disclosed. In any event, the defence submits that this should be disbelieved because it was an attempt by Favreau to meet the criticism of him by Mitchell and to rehabilitate himself with Curtis. With the complete collapse of the credibility of both White and Favreau, the Court should make a finding that Heather Gunn must have told White and Favreau what she said later about seeing Danny Favreau on Matheson Street acting suspiciously.
[6] The non-disclosure and suppression of evidence important to the accused’s right to make full answer and defence constitutes a breach of section 7 and an abuse of process and should result in a stay.
IV Statement of Carambetsos to White - October
4, 2000
[7] Then Sgt. D. Jorgensen, now Deputy Chief Jorgensen, was the identification officer in this case. He gave evidence of his examination of the scene. He took blood swabs of the bloodstains in Maria Campenella’s apartment, the entryway from the street to the stairs leading to her apartment, on the sidewalk outside the door to the street, and in the area where the body was found. He submitted these swabs along with some other evidence to the Northern Regional Forensic Laboratory in Sault Ste. Marie for testing. In accordance with the procedure, he drafted a case summary, which included a case history and a list of the exhibits submitted. The case history consisted of two pages 8 ½ x 14 of single space typing. Jorgensen drafted this document on October 14, 2000 at the police station. He worked on a desk in the breathalyzer room. He did the typing himself. White was working in an office in the same area. Jorgensen consulted with White in setting out the case history in areas of the investigation where he did not have personal knowledge.
[8] The third paragraph of the second page reads as follows:
“CAMPENELLA was finally spoken to when investigators began checking the area later in the morning. She related her story and the accused was arrested approximately 8 hours after the events so far described. He would not give a statement but did state to officers that he had carefully taken the deceased out of the apartment, taking particular care going down the stairs to ensure the deceased remained upright and did not fall. He indicated the deceased already had blood on him when he found him in the chair and that he in no way was responsible for any injuries to the deceased. He indicated the deceased was fine when he left him and in fact had called the accused an “asshole” as he (the accused) was walking away.” (highlighting added)
[9] I conducted a voir dire at the request of the accused to determine the origin of this information and further particulars. Jorgensen said he acquired this information from White as he was drafting the case history on October 14. Jorgensen himself had not spoken to Carambetsos. Indeed, he had not interviewed any witnesses. He thought that White could have given him this information sometime before October 14 in discussions about the case. He could not be sure. He went to Winnipeg with White on the night of October 4. He thought it likely that White told him what Carambetsos said at that time. Counsel agreed that the crown had disclosed the case history form as part of the initial disclosure package well in advance of the preliminary hearing. Counsel are also agreed that this exculpatory statement of the accused was not in police notes or will-states. Mr. Gibson said that he only became aware of it several days before the commencement of the trial in his preparation to cross-examine Jorgensen. The crown accepts this.
[10] Mr. Gibson called Cst. White, now Sgt. White. He testified that Carambetsos had made a statement to him at the police station on the morning of October 4 containing information similar to the information in the case history. He did not make a note of it. He did not make a videotape or audiotape of the conversation. He could not recall the precise words used by Carambetsos. He agreed that Carambetsos likely did tell him precisely what is in the document. Jorgensen was the author of the document. He obtained the information from White. Hence White agreed that he must have told Jorgensen this and it must have been the truth. He did not have an independent recollection of it.
[11] He said that he had disclosed this information to the other members of the investigative team. He meant by this, Favreau, Ratchford and Jorgensen. Mr. Gibson called Favreau and Ratchford on the voir dire. Each denied any knowledge of this statement of Carambetsos to White. White did not disclose it to the crown attorney or to the court. His explanation for this was twofold. He said that he was not sure of its admissibility, and he felt bound by an undertaking that he had made to Carambetsos that his questioning of him was off the record. He agreed that he testified as follows at the preliminary hearing and at the pre-trial motions:
From the
Preliminary Hearing:
Q. And do you have a conversation with Mr. Fregeau when he finishes with his client?
A. Nothing specific that I, he probably said don’t talk to my client, something like that.
Q. Well, do you recall him saying that or…
A. I don’t recall.
Q. …do you think he probably said that?
A. I’ve dealt with him before and that’s usually what he says, but I don’t recall what he said this time.
Q. You didn’t make a note of that?
A. I didn’t, no.
Q. And so after Mr. Fregeau leaves, what do you do?
A. I eventually take Mr. Carambetsos’ fingerprints and picture.
Q. Do you have any conversation with him at that point in time?
A. Umm…we talk, yes.
Q. You talked with Mr. Carambetsos?
A. Yes.
Q. What did you discuss?
A. Uh…it was…I’ve know Justin for quite awhile, our talk was, and I used the words ‘off the record’ and I didn’t make notes of anything we talked about.
Q. What do you mean, are you using the term ‘off the record’ with us or you used that term with Mr. Carambetsos?
A. I used it with him.
Q. What exactly did you say?
A. Just talked of the seriousness of the incident. He said he doesn’t want to talk, he doesn’t want to talk, advice from his lawyer, he didn’t want to talk and it was just a round about circle in, as we sat in the room.[1] (highlighting added)
And:
Q. So, when you get into the Ident. area, the first order of business is to take pictures and prints?
A. That’s the process, yes.
Q. Is that what happened?
A. We sat down first.
Q. And you initiated a conversation?
A. Yes.
Q. And what did you say to him?
A. Like I said, I just said, you know, talked about the seriousness of the incident and that he said, “I don’t want to talk, I don’t want to talk, my lawyer said not to talk,” and then I just said, “this is off the record between me and you,” that “you know, you may be in a lot of trouble here” and “I don’t want to talk, I don’t want to talk.” We didn’t get into any specifics of the case or like I say, nor did I write down anything.[2] (highlighting added)
From
the pre-trial motions:
Q. So, can you give us your best recollection of the sort of, back and forth between you and Mr. Carambetsos, what did you say and how did he respond?
A. Well, like I said, you know, I kept expressing the seriousness of the offence, uh, that anytime he wanted to talk, we would talk, uh, again, I, I’m, I’m sure I woulda told him we knew he was at the apartment. Uh, I may have said uh, that I know, or “I feel you didn’t mean to kill him”. Uh, I would say the gist of all his response was, “my lawyer told me not to talk, my lawyer told me not to talk”.[3]
[12] He agreed that this evidence was false.
[13]
Other passages from White’s evidence at the
pre-trial motions that might have been presented to him include the
following:
From the
pre-trial motions:
Q. Did you ever tell Ms. Mousseau that the accused had made inculpatory statements in this case?
A. I don’t think so, no.
Q. Is it possible that you said that?
A. He didn’t say anything to me, other than he didn’t wanna talk.[4] (highlighting added)
And:
Q. Did you ever have any intention through this whole process, to do anything other than give the crown a truthful and accurate response to the questions that were posed?
A. That’s all I ever had in my mind was doing the right response, giving the truthful answers.[5]
And:
Q. In your view, would it have been appropriate at that point, to go to Mr. Carambetsos and take a witness statement from him?
A. It wouldn’t of been a witness statement, it would’ve been a cautioned statement.
Q. So, why didn’t you simply do that, why didn’t you simply go and take a cautioned statement from him?
A. Because I’d have to tell him it’s his option that he doesn’t have to.
Q. And so I take it you would have to advise him of his right to counsel and caution him, is that correct?
A. Yes, sir.
Q. And when you were dealing with Mr. Carambetsos was it your belief that he had been given his right to counsel and cautioned?
A. It was, yes, sir.
Q. And was it your belief that he’d already had an opportunity to talk to his lawyer?
A. Yes, sir.
Q. And I take it his position at that point was, on advice of his counsel he didn’t wanna talk to you about the offence?
A. Yes, sir.
Q. And you indicated that the reason you wanted to talk to him was that there are two sides to every story?
A. I was gonna give him the opportunity to express his side of the story if he wanted to.
Q. What would you have done if he had given you information that in a very convincing way, led you to conclude that he was guilty of nothing?
A. Well, I, if he wanted to say anything, it would’ve been on videotape under caution and then we would have to review that and follow-up any leads that came out of it.
Q.
And would any statement he made, good, bad or indifferent, have become part of
the record of this particular investigation?
A. It would’ve, yes.[6] (highlighting added)
[14] This evidence was also obviously false.
V The Statement of Heather Gunn to White
and Favreau on October 4, 2000
[15] Heather Gunn has made six statements of what she saw – to Lydia Harlos on October 4, 2000; to White and Favreau on October 4, 2000; to White on October 6, 2000; at the preliminary hearing on June 27, 2001; to Cst. K. Warren on August 26, 2003; and to Benson and Detective J. Matthews on January 13, 2004.
[16] She said that she heard a thump. She looked up and saw a man across the street. That man went into the door leading into Maria Campenella’s apartment. He came back out the door and threw something in the area of the dumpster on the corner of Matheson Street South and Third Street South. He then went back through the door. She crossed the street and saw a person or a body in the area where the man threw something. She also referred to what she saw as ‘a body’ and ‘Max’. The person/body was located south of the electrical box. This is the structure mounted on top of a cement pad located two feet south of the wall of Lee’s Satellites where Lundgren and Zroback found the body. I will call this space the ‘slot.’
[17] She went home. From the back window of her apartment, she saw a man walk down Matheson Street towards the person/body and then come back up Matheson Street towards the Bizzi-Bee, acting suspiciously by turning his head. He had a white peak cap on his head which was turned backwards. She thought that man was Danny Favreau. She went back to where the person/body was before the police came. She thought that the person/body had been moved and robbed.
[18] Lydia Harlos said that Heather Gunn told her that Danny Favreau was in the area. White made a note of Lydia Harlos saying this. Favreau made no notes. He did not remember Lydia Harlos saying this. Favreau said at the preliminary hearing that Heather Gunn said that Danny Favreau was in the area, but he did not regard him as a suspect. White had not made a note and had no recollection of Heather Gunn saying this. At the pre-trial motions Favreau said that Danny Favreau was at first a suspect. As soon as Heather Gunn said that Danny Favreau was in the area in the police car, he left the car. He dispatched Ratchford to look for Danny Favreau. Ratchford looked for him in the apartment above the Bizzi-Bee. He could not find him. The crown had not disclosed this information prior to Favreau giving evidence of it at the pre-trial motions in January 2003.
[19] Ratchford confirmed in his evidence at the pre-trial motions that he did look for Danny Favreau in the apartment above the Bizzi-Bee. He had no notes of doing this. He said that he could not find him. The crown had not disclosed that he had done this prior to Ratchford testifying at the pre-trial motions in January 2003. At about the same time that Ratchford said he looked for Danny Favreau, he dispatched some patrol officers to remove some drunks that were in the laneway between Second and Third Streets to the east of Matheson Street. He did have notes of this.
[20] White and Favreau interviewed Maria Campenella. Favreau said that after he learned from Maria Campenella that Justin Carambetsos had removed Max Kakegamic from her apartment he became convinced that it was Justin Carambetsos and not Danny Favreau who went through the door leading to her apartment. From that point, he said that he was satisfied that Danny Favreau was not a suspect.
[21] Favreau’s evidence at the pre-trial motions of what Heather Gunn said about seeing Danny Favreau is vague and contradictory. A sampling of this evidence is as follows:
Q. How long did the conversation last?
A. Uh, she had mentioned Danny Favreau’s name again, and when she did, uh, there was some other conversation, I stepped out of the vehicle and I spoke with Cst. Ratchford, so I don’t know what transpired after that.
Q. Well, at what point did Danny Favreau’s name come up?
A. Just prior to me stepping out of the vehicle.
Q. Well, what…
A. She, she had mentioned his name, saying that you know, Danny Favreau could been, it could’ve been Danny Favreau in the area, something like that.
Q. Do you mean to say that she was suggesting that the person she saw was Danny Favreau?
A. Yes.
Q. So, as soon as you heard her say that…
A. Yes.
Q. …you’re saying you stepped out of the Jeep?
A. Yes.[7]
And:
Q. Okay. So I don’t think I’ve had a, an answer to my question yet, which is, how did Dan Favreau get eliminated as a suspect?
THE COURT: Well, you know, we’ve gone around and round this a number of times and I’m going to ask it. Where is Dan Favreau, where is he, he’s in the area, but where? Has there been any evidence linking this man Dan Favreau in the area, to this man that’s seen walking from the southeast corner to the middle door?
MR. GIBSON: Q: I understood this officer to be saying your impression was that Ms. Gunne was saying that was Dan Favreau. Is that not right?
A. I can’t recall her specific words, but when she mentioned Dan Favreau might’ve been in the area, Dan Favreau could’ve been in the area, I don’t know her specific words.
THE COURT: Yes, but in what area?
A. In the area of, of Matheson Street.
THE COURT: Well, Matheson Street on that map, runs from Second Street, corner of, on the north and then it goes into First Avenue South where it changes name. Where on Matheson Street?
A. In vicinity of the 223 Matheson, Your Honour.
THE COURT: Well, is is, does Heather Gunne say or does she not say that this man that she sees going from the corner of Matheson Street 223, go and come back, does, does she say or does she not say that this man could be Danny Favreau? Or do you know?
A. I don’t know, Your Honour, I don’t have that recall that she said specifically that that man, or that she identified that person as being Dan Favreau. I don’t have that specific recall. It’s just that he was in the area. That’s my recall.
MR. GIBSON: Q. Well, you don’t recall exactly what she said but you say that when she said whatever she said, you jumped out of the Jeep thinking Dan Favreau was a suspect and went across the street to where Cst. Ratchford was and told him to go look for Dan Favreau, isn’t that right?
A. That’s correct. He may have been a witness as well.
Q. Well, and I asked you about that and you said he was a suspect…
A. Yes.
Q. ..and you regretted not telling us that earlier at the preliminary hearing.
A. Yes.
Q. So, you thought he was a suspect at that time when you got out of the Jeep, right?
A. As I said before, everyone’s a suspect I suppose, and I, I’m sorry didn’t use that terminology before. I regret that now because there seems to be some confusion.[8]
[22] Heather Gunn told White on October 6, 2000, testified at the preliminary hearing on June 27, 2001 and told Cst. Warren on August 26, 2003 that she saw a man on Matheson Street from her apartment acting suspiciously walking toward the body and away from the body. These statements are set out in my ruling dated December 3, 2003. She did not name him in the statement to White. She did name him in her evidence at the preliminary hearing and in her statement to Warren. The relevant portions of the statements are as follows:
October 6,
2000 to White:
White: Right, okay. Um…did you see anybody else on the street that night?
Gunn: The only person I saw, was the guy with the white p…hat like I told Mr…. Mr. Favreau.
White: Right.
Gunn: Had a white peaked hat on…
Mr. Gibson: Q. And you walk out your back door and you see a young person with a white peak cap?
Heather Gunn: A. Yeah.
Q. Okay. Now, you think that person was Danny Favreau?
A. Yeah, I thought it was.
Q. But you don’t think that now?
A. I don’t know who it was. I say it could of been Danny because I’ve seen Danny around at that, that time of night, quite a few times. There’s lots of them out there that time of night.”
And:
Q. Why did you think it was him?
A. Well, just the way he walks, he has a funny walk.
Q. And this person that you saw with the white peak cap, had that funny walk?
A. Yeah.
August
26, 2003 to Cst. Warren:
KW: Okay…uhhmm now when you look out your bedroom window how much can you see out there?
HG: You can’t see very much. You can’t see where the accident was. You…I couldn’t do that but I could see if anyone was walking back and forth. And the only person I saw walk back was Danny.
KW: Okay.
HG: That’s what I…I…uhh of course should not have said the person’s name because they are related to…is related to Donny… er Tom Favreau and I think Trevor…if I can recall right. Trevor came out and he said to Tom you’d better get your book in straight order because there is something not connecting here.
KW: Okay…now how do you now (know) Danny Favreau?
HG: He used to…we used to go… the whole lot of us used to go out for coffee and he was one of them and he can be an idiot when he wants to and that’s how I knew.
[23] Michelle Boucher testified in the other suspect motion in October 2003 that Danny Favreau had a distinctive walk. She said the following:
Mr. Gibson: Okay. Now, have you had opportunities, in the course of your acquaintance with Mr. Favreau, to watch him walk?
M. Boucher: Oh yeah.
Q: Can you tell us about the way he walks?
A: Walks with, like, a limp, like he’s got somethin’ wrong with his legs. He had - - -
THE COURT: He has got something wrong or - - -
A: It looks like he, like, I’m not, I don’t think he does. It’s just his way of walking, like he walks the same all the time whether he’s drunk or sober. It’s just the way he walks. He doesn’t walk like I do. Like, it’s hard to describe. Like, I can’t walk like him and he’s kinda hunched over. Like, he brings his shoulders in forward. I could spot him in a crowd of 100 people just the way he - - - (page 17 transcript)
[24] It must be noted that Favreau never says that Heather Gunn said in the police car on October 4, 2000 that she saw Danny Favreau walking to and from the body on Matheson Street and acting suspiciously from the back window of her apartment. Since Heather Gunn consistently without prompting told this to others – to White on October 6, 2000, to the court at the preliminary hearing on June 27, 2001, and to Warren on August 26, 2003, the defence submits that it defies belief that she did not also tell this to Favreau and White in the police car.
[25] Curtis removed Favreau as head of the CIB as a result of Mitchell’s letter dated July 17, 2001. Curtis testified at the pre-trial motions that Favreau could get his job back, depending on the outcome of this case. Part of Mitchell’s criticism of Favreau concerned the way that he dealt with the evidence from Heather Gunn implicating his nephew, Danny Favreau. Paragraph 2 of that letter reads as follows:
Evidence came out at the preliminary hearing
that Sgt. Favreau was aware that one ‘Danny Favreau’, his nephew, was reported
leaving the scene heading north on Matheson Street, South at or about the
relevant time of the homicide.
There did not appear to have been a concerted effort to investigate Danny
Favreau’s whereabouts at the onset of the investigation and this raised the
spectre at the preliminary hearing of bias and/or cover-up by the police. This information should have been dealt
with quickly; steps taken to avoid any potential conflict; and another lead
investigator assigned to avoid the appearance that one family member was
‘covering’ for another.[9]
VII Analysis
[26] The reasons White gave for not disclosing the exculpatory statement of Carambetsos to the crown or to the court are that he had an agreement with the accused to keep it confidential and he was uncertain of its admissibility. White admitted in a hypothetical question that if he was asked what an accused said, notwithstanding his promise to him to keep what he said confidential, he would give the evidence. He acknowledged that the situation was not at all analogous to an informer. Clearly it is the crown whose advice he should seek on the admissibility of evidence and it is the judge who decides what evidence is admissible. His role as an investigator is to relate the fruits of his investigation to his superiors. As a witness, it is to answer the questions that are put to him truthfully. The reasons that White gives are unacceptable.
[27] White falsely represented to the crown attorneys that Carambetsos had not given a statement. His evidence at the preliminary hearing and at the pre-trial motions to the same effect was false. White said that he told Favreau and Ratchford that Carambetsos had given a statement to him. Jorgensen said that he told him and White confirmed this. This is further confirmed by Jorgensen recording what White had told him in the case submission form to the lab compiled by him on October 14, 2000. Favreau and Ratchford denied under oath before me that White told them that Carambetsos had made a statement to him on the morning of October 4. I do not believe this evidence. I find that this evidence of Favreau and Ratchford is false.
[28] Favreau said at the preliminary hearing that although Heather Gunn said in the police car that Danny Favreau was in the area, he was not a suspect. Now that I know of Danny Favreau’s criminal record and his propensity for violence against helpless men, I appreciate the significance of Danny Favreau being in the area and the ominous tone of the phrase “Danny Favreau was in the area”. On January 29, 2003 in his evidence at the pre-trial motions, Favreau said for the first time that when Heather Gunn mentioned in the police car the name of Danny Favreau that he was a suspect. He said that he immediately left the police car and dispatched Ratchford in an attempt to find him. White said Favreau never left the police car while they were talking to Heather Gunn. Ratchford confirmed in his evidence at the pre-trial motions that this happened. He said that he looked for Danny Favreau in an apartment above the Bizzi-Bee. This is where Michelle Boucher said that Danny Favreau lived for a time with her and Glen Wood between about September, 1999 and April, 2000. Since Ratchford knew to look for him there, this suggests that Danny Favreau was a person whose whereabouts the police monitored. Ratchford has no notes of doing this. Favreau has no notes at all. None of this was disclosed prior to the pre-trial motions.
[29] Favreau said that he eliminated Danny Favreau as a suspect in his evidence when he learned from Maria Campenella that it was Justin Carambetsos who entered her apartment from the door on Matheson Street and removed Max Kakegamic from the apartment. This required the quantum leap in logic that it was Justin Carambetsos who not only removed Max Kakegamic from the apartment but it was he who assaulted and killed him. It was shortly after this that I have found that White told Favreau that Carambetsos told him that he did not assault Max Kakegamic and that he left him conscious and uninjured by him on Matheson Street. Ratchford has notes of dealing with some drunks near the crime scene at about the same time that he says he made a search for Danny Favreau, of which he has no notes. He would have the court believe that he makes notes about drunks but does not make notes about a very significant step in the investigation of a homicide. Mr. Gibson is likely right when he submits that Favreau, with Ratchford’s concurrence, has likely fabricated the evidence about the search for Danny Favreau.
[30] In my view, this evidence of Favreau and Ratchford cannot be accepted.
[31] The evidence of Favreau, White and Ratchford has no credibility in these proceedings. I find with regret that I cannot accept anything that these three officers say unless it is corroborated by reliable, independent evidence.
[32] In my ruling dated June 27, 2003, I made the following finding:
“[164] In my view, the violation of these Charter rights of the accused was largely the result of ignorance of the law and inexperience. I do not see bad faith on the part of the police.”
[33] I also said, “this is not to say that White is intentionally being untruthful” (para. 166) and that White “has shown an excess of zeal” (para. 166). These findings cannot be sustained.
[34] I found in my prior ruling that White did not have a subjective belief that Carambetsos had committed murder. I also found that Cummine did not tell White in their conversation on October 4 at 5:30 a.m. to lay a charge of second degree murder. Favreau testified that he met with Cummine on the morning of October 4 at the police station when they discussed the charge of second degree murder. I said, “Favreau may be confusing this meeting with subsequent meetings on the days that followed” (para. 166). This meeting never took place. Favreau was not confused. He was telling a falsehood. Mr. Gibson submits that White laid a charged of second degree murder which he knew could not be supported with a view to extorting a plea of guilty to the lesser charge of manslaughter. I have no direct evidence that this was what White was doing. In my view, there is abundant circumstantial evidence to support this proposition. It is very likely exactly what he was doing.
[35] The same criticism cannot be made of Jorgenson’s credibility. It was Jorgenson who told Mitchell of the meeting on October 10, 2002 of Favreau, White, Ratchford and himself, at which they discussed their responses to Carambetsos’ affidavit sworn September 12, 2002. He said that he did not know that Favreau and White changed their statements after the meeting. It was Jorgenson who recorded in his case submission dated October 14, 2000 to the lab the statement that White told him that Carambetsos made to White on October 4, 2000. Jorgenson gave evidence at the trial as best he could of his recollection of receiving that statement. But for Jorgenson, the events which have destroyed the credibility of Favreau, White and Ratchford would not be known.
[36] In his evidence at the pre-trial motions on May 20, 2003, Mitchell said the following:
THE COURT: Well, how do you feel about that, that Jorgensen told you that there was a meeting but that he did not tell you that, that statements were changed?
A: I don’t know that Jorgensen knew. Uh, because my understanding is that White and Favreau went in and changed their statements, but I don’t know that Jorgensen knew. Jorgensen was uh, reproached, if I could use the term, uh, by at least the Deputy and maybe the Chief for uh, his communications with me. Umm…I may be, be using too strong language but I have a feeling they felt he was uh, like fifth column or a mole uh, to the Crown’s office and that they didn’t want him communicating with me. In fact, he told me that. You know we’ve got a uh, uh…I recall calling in on the, that, that untapped line and, and him getting the call and, and him telling me, “Look, I can’t, I can’t talk to you about uh, this case here, umm…because I’ve been told.” Umm…now that was probably to maintain team solidarity but uh, umm…I don’t think Jorgensen knew.
THE COURT: That the statements were changed?
A: No, I don’t think he knew. He’s, he’s been very upfront with me uh, in all my dealings with him.
[37] It is a measure of the extent to which senior police officers in the Kenora Police Service misunderstood their proper role that a police officer who made proper disclosure to the crown attorney could be described by his fellow officers as a “mole”.
[38] Mitchell said in his letter dated July 17, 2001 to Curtis the following:
“Your C.I. Management and quality control was deficient in the extreme.”
[39] Mitchell did not know what I know. He was wrong to focus solely on Favreau. White and Favreau worked together to suppress exculpatory evidence about Carambetsos. He also understated the problem. The Criminal Investigation Management in the Kenora Police Services carried out by Favreau and White was more than deficient. These officers were a force unto themselves. The courts can sometimes tolerate police inexperience, blunders, mistakes and inefficiency. The courts will sometimes make allowances for poor police work done in good faith. What the courts cannot tolerate is police dishonesty.
[40] Mitchell did not know all the facts. He was right in sensing that immediate action was necessary to remove Favreau from his position. I was wrong in suggesting otherwise.
(2) Exclusion of the
Boots
(a) Section
9
[41] I held in my prior ruling that the police were required to have reasonable and probable grounds to arrest Carambetsos for manslaughter, that Carambetsos deposited Max Kakegamic in the slot, that Carambetsos assaulted Max Kakegamic, and that Max Kakegamic died from the injuries arising from the assault. Storrey requires that the police have a subjective belief in these grounds and that their belief can be justified objectively. It is my view that Favreau and White were working as a team. Ratchford followed their lead. Jorgensen was working alone. He took direction from Favreau and White. After Favreau and White interviewed Maria Campenella, they met with Jorgensen on the street outside her apartment. Jorgensen was prepared to conduct at that time a forensic examination of Maria Campenella’s apartment. Favreau and White made a decision not to direct Jorgensen to enter Maria Campenella’s apartment for this purpose. If Jorgensen had done so with Favreau and White, they could have pointed out to him the chair where Maria Campenella said that Max Kakegamic was sitting. A blood stain on the chair was readily visible. A halogen light was available at the police station and from the fire department, which was on the scene. With the use of a halogen light, Jorgensen could have discovered bloodstains in the room where Max Kakegamic was sitting. Maria Campenella said that there was no altercation between Carambetsos and Kakegamic before they left the apartment. This was compelling evidence that Max Kakegamic was bleeding from injuries that he sustained before he became involved with Justin Carambetsos. This prior bleeding was a possible source of the blood on the sidewalk outside the door to the apartment. The blood trail started at the chair and not at the door leading onto the street.
[42] White and Favreau assumed that Justin Carambetsos had deposited Max Kakegamic in the slot. They made this assumption based on Heather Gunn’s statement that when she crossed the street she saw a body or a person on the corner and Zroback and Lundgren finding the body in the slot. If they had questioned Heather Gunn on the morning of October 4, 2000 specifically where it was that she saw the body when she crossed the street, she could be expected to have told them what she told Benson and Matthews on January 13, 2004 (over three years and three months after the incident when, astonishingly, she was asked this crucial question for the first time) that the body was located outside the slot to the south of the electrical box. She did say to Benson and Matthews that when she came back, the body was in the slot, that it had been moved one inch and that it was in the same place where she first saw it. Obviously it is more than one inch from the location of the body to the south of the electrical box to where it was found in the slot. This may be a figure of speech. The crucial point is that when Heather Gunn first saw it, the person/body was located outside the slot. It would take some care to pull the body into the slot. There was no evidence that Justin Carambetsos ever came back to the body after he went to Maria Campenella’s apartment. If it was Justin Carambetsos who originally deposited the body where Heather Gunn said that she first saw it, this means that someone else would have had to have moved the body into the slot after Justin Carambetsos left. This undermines the police theory that Carambetsos was trying to hide the body. It also supports the theory that Danny Favreau interfered with the body in an attempt to rob it.
[43] White and Favreau made a decision to arrest Carambetsos for manslaughter immediately after they had spoken to Maria Campenella. This is illustrated by White’s evidence at the pre-trial motions from the passage quoted in paragraph 15 of Mr. Gibson’s factum as follows:
Q. All right, now at this point in time, Miss Campenella has not said anything to you about being aware Mr. Carambetsos using any violence on the as yet unknown individual who was discovered earlier in the night, right?
A. Uh…all she told us was she heard Mr. Carambetsos wake him up, words were exchanged between the two, Mr. Carambetsos brought Mr. Kakegamic downstairs, opened the door I guess, she doesn’t know what happens after that, he returns, I think she advised the first time, maybe ten minutes later, he comes back, they do a search of the apartment, a walk through and then Mr. Carambetsos leaves after he makes sure she locks the doors behind him.
Q. And it was on the basis of that conversation that you formed reasonable grounds to believe that Mr. Carambetsos had…
A. The time frame…
Q. Second degree murder?
A. The timeframes, well, I didn’t say he committed second degree murder at that time. We felt he was involved in the occurrence because of the timeframes fitting together.
Q. Well, you were prepared to arrest him for second degree murder, were you not?
A. I, I think so, yeah.[10]
[44] This decision was based on what Maria Campenella told them about Justin Carambetsos removing the intruder from her apartment. They had a statement from Heather Gunn which appeared to show Justin Carambetsos dealing with a person/body in a callous manner. It was based on the blood trail which they assumed led from the door onto the street to the body if Max Kakegamic. It was also based on their assumption that Justin Carambetsos deposited the body where the police found it in the slot.
[45] These latter two assumptions would have been undermined by the location of blood in the room where Max Kakegamic was found and the location of the body where Heather Gunn first saw it. The investigative steps to determine this were simple, would have taken little time and ought to have been done before a decision to arrest was made.
[46] In light of the collapse of the credibility of White and Favreau, the reputation for violence that Carambetsos had with the police must be given greater weight in their decision to arrest Carambetsos before conducting a more thorough investigation. The single incident that the police could cite to support that reputation was Carambetsos being a suspect in the assault of Billy Edwards, for which they did not have reasonable and probable grounds to arrest him.
[47] The police had a subjective belief that Carambetsos had committed an assault on Max Kakegamic, which caused his death, but that subjective belief cannot be sustained on objective grounds to meet the Storrey test.
[48] Having arrested Carambetsos, White received a statement from him as to what happened. In that statement, he said Max Kakegamic had blood on him when he discovered him, that he carefully escorted Max Kakegamic to the street, that he did not inflict injuries on him, and that when he left him, he was alive and able to speak clearly. Carambetsos did not have a criminal record. He was gainfully employed. From everything that I have heard about him, he appears to have been a normal, law-abiding citizen. If Carambetsos did assault Max Kakegamic, there were only two witnesses to the assault. One was dead. White said in his evidence that having received Carambetsos’ account of what had happened, an investigation would have had to have been done in any event. This is true. The police could not be expected to accept Carambetsos’ account and end their investigation. In my view, however, the police had no right to detain Carambetsos while they did this. As Cummine advised, they could keep him under surveillance until they at least had a cause of death. They did not have reasonable and probable grounds to arrest him and having arrested him after receiving his statement, they did not have reasonable and probable grounds to detain him. He should have been released as the police did in Holtam (paras. 9 and 29) and Stillman (para. 8) while the police continued their investigation. In R. v. Duguay[11] the Ontario Court of Appeal held that a finding of arbitrary detention contrary to s. 9 of the Charter did not necessarily follow from a legal arrest. The court stated the following:
It cannot be that every unlawful arrest necessarily falls within the words “arbitrarily detained”. The grounds upon which the arrest was made may fall “just short” of constituting reasonable and probable cause. The maker of the arrest may honestly, though mistakenly, believe that reasonable and probable grounds for the arrest exist and there may be a basis for that belief. In those circumstances the arrest, though subsequently found to be unlawful, could not be said to be capricious or arbitrary. On the other hand, the entire absence of reasonable and probable grounds for the arrest could support an inference that no reasonable person could have genuinely believed that such grounds existed. In such cases, the conclusion would be that the person arrested was arbitrarily detained. Between these two ends of the spectrum, shading from white to gray to black, the issue of whether an accused was arbitrarily detained will depend, basically, on two considerations: First,