KENORA COURT FILE NO.:  01-037

DATE:  June 27, 2003

 

 

ONTARIO

SUPERIOR COURT OF JUSTICE

 

 

B E T W E E N:

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HER MAJESTY THE QUEEN

 

Respondent

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Alex Smith and Trevor Jukes, for the Respondent

 

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JUSTIN CARAMBETSOS

 

Applicant

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David Gibson, for the Applicant

 

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HEARD:  January 20 – 30, February 3 – 7, May 20 – 29, June 16 – 18, 2003 in Kenora

 

 

SUBJECT TO A BAN ON PUBLICATION

 

 

THE HONOURABLE MR. JUSTICE P. B. HAMBLY

 

1.         Introduction

 

 

[1]          Justin Carambetsos was arrested on October 4, 2000 on a charge of manslaughter on Max Kakegamic in the City of Kenora.  Shortly thereafter he was arraigned before a Provincial Court Judge on a charge of second degree murder.  He was released on bail on October 12, 2000. After a preliminary hearing he was committed for trial on June 29, 2001 by His Honour Judge Fraser, before a court composed of a judge and jury on the charge of manslaughter.  An application by the Crown to substitute a committal for trial on a charge of second degree murder was denied by Justice Platana on February 5, 2002.

[2]          The accused has brought an application prior to trial in which he alleges a number of breaches by the police of his rights under the Charter.  The onus is on the accused on a balance of probabilities to establish the breaches and his right to a remedy. He argues that the police lacked reasonable and probable grounds to arrest him for the offence of manslaughter or second degree murder and hence his detention was arbitrary contrary to s. 9.  He alleges that he was not advised of his right to counsel when he was arrested for manslaughter or when the charge was elevated to second degree murder, contrary to s. 10(a) and (b).  The police seized his boots some time after his arrest.  The Crown concedes that they were not seized incidental to his arrest.  He alleges that the seizure of his boots violated his rights under s. 8 of the Charter to be secure against unreasonable search or seizure. He alleges that the police, in questioning him after his arrest, breached his right to remain silent contrary to s. 7 of the Charter. As a result of these multiple breaches of the Charter the accused seeks the exclusion of the boots from evidence pursuant to s. 24(2) of the Charter.  The Crown does not seek to adduce statements made by the accused to the police.  I have held that there were breaches of the accused’s rights under the Charter by the police but notwithstanding this, the evidence should be admitted.

[3]          The accused also brings a pre-trial application for an order that the police violated his rights pursuant to s. 7 of the Charter and for an order that the charge be stayed pursuant to s. 24(1) of the Charter. The accused alleges misconduct by the police under seven headings as follows:

1.                  The Kenora Police Service deliberately ignored evidence that tended to lead away from the applicant as the perpetrator of the offence to protect the relative of one of the officers.

2.                  The police willfully exaggerated evidence against the applicant due to personal bias to the point of lying about advice received from the Crown, and lying to the Crown about evidence in their possession.

3.                  The police improperly influenced the key Crown witness, Heather Gunn.

4.                  The police altered notes.

5.                  The police colluded on the creation of statements.

6.                  The police destroyed original records of written recollections for the purpose of deceiving the Crown attorney concerning their improper conduct.

7.                  The police engaged in a pattern of conduct which shows a pervasive disregard for the applicant’s Charter rights.

 

[4]          I have held that what police misconduct there is does not give rise to an abuse of process. The accused is not entitled to a stay of proceedings.

[5]          Mr. Gibson represents the accused.  Mr. Smith and Mr. Jukes represent the Crown.  The accused filed an affidavit and testified.  He also called a number of witnesses in support of his application.  The Crown took the position that Mr. Gibson could cross-examine the police officers and Crown Attorneys that he called within reasonable limits.  The Crown’s position regarding civilian witnesses was that the normal rules apply.  Mr. Gibson called Constable Zroback, Constable Lundgren, Chief Curtis, Deputy Chief Ponton, Sergeant Favreau, Sergeant Jorgenson, Constable White, Constable Ratchford, Kim Wlodarek and Maria Campenella.  He called Crown Attorneys Mary Ann Mousseau, Richard Cummine, Trevor Jukes and Dan Mitchell. The Crown called Diana Wilson and Constable White in reply.


2.         The Police Investigation

 

[6]          On October 4, 2000, Diana Wilson was the 9-1-1 dispatcher for the Kenora Police Service. At 1:00 a.m., she received a call from a woman who would not identify herself. The voice recording machine in the office was not working. Ms. Wilson took handwritten notes and entered the information in a computer. The woman said that a friend had witnessed a man getting beaten up and dragged in an alley by Images on Matheson Street South. The woman would not identify herself. Ms. Wilson dispatched Constables Zroback, Lundgren and Czusdi to the scene. She sent a message over the police radio, “I have received third-hand information about a man getting beaten up and dragged in an alley by Images.”

[7]          Zroback and Lundgren were on patrol in a police cruiser. Zroback was driving. They received the dispatch from Diana Wilson. Lundgren recalls the message being a possible assault with three guys fighting.  At about 1:07 a.m. they located a body at the northeast corner of the intersection of Matheson Street South and Third Street South.  The body was that of a native male who was later determined to be Max Kakegamic.  It was lying on its right side in a space of about two feet between a green electrical box mounted on a cement pad and the south wall of a store called Lee’s Satellites at the west end of the store.  It was parallel to the sidewalk on Third Street.  The feet were facing west and the head was facing east.  The feet were pulled up in a fetal position.  Lundgren pulled the body out onto the sidewalk on Third Street.  He attempted CPR.  There were no vital signs.  An ambulance removed the body to the hospital. At 1:44 a.m., Dr. Snider at the hospital declared the victim to be dead.

[8]          While Lundgren was performing CPR an older lady about age 65 approached him.  He recalled that she told him that some guys or a couple of guys beat the man up and threw him between the building and the cement pad.  When she spoke to him he did not pay much attention to her because he was busy with the victim.  When he looked for her she was gone.

[9]          Constable Czudi attended at the scene.  He returned to the police station.  He summoned four senior officers to the police station.  They were Sergeant Tom Favreau, Constable Lloyd White, Constable Chris Ratchford and Sergeant Dan Jorgenson.  Sergeant Favreau was in charge of the criminal investigation branch of the Kenora Police Service. He took charge of the investigation.  He assumed the role of case manager.  He appointed White as the lead investigator, Ratchford as the file manager and Jorgenson as the identification officer.  None of these officers were experienced in investigating major crimes.  Favreau distributed to each of them a list of their duties that he had received on a training course. These four officers all attended at the scene.

[10]      Ms. Wilson, through call trace, was able to identify the person who made the call to the police as Lydia Harlos.  Favreau and White located her and interviewed her.  She said that she made the call based on information that was given to her by her aunt Heather Gunn.  They were able to locate Heather Gunn.  They placed her in the back seat of the police car.  They parked the police car on the west side of Matheson facing south a short distance north of Third Street.

[11]      Across the street were three doors.  The street numbers associated to those doors from north to south were 221, 223 and 225.  The police officers asked Heather Gunn what she saw that caused her to call her niece.

[12]      Heather Gunn lived in an apartment above Ted’s Grill, which was located on the southeast corner of Matheson Street South and Second Street South.  At about 12:30 a.m. she took her two dogs for a walk from this residence.  At about 12:45 a.m. she was standing on the west side of Matheson Street South in front of the Canadian Tire store.  It was set back on the southwest corner of Matheson Street South and Third Street South.  She was “kitty corner” to Lee’s Satellites across the street.

[13]      The middle door at 223 Matheson Street opened into a stairwell that led to an apartment on the second floor above Lee’s Satellites.  The police later learned that that apartment was occupied by Maria Campenella.

[14]      Heather Gunn told Favreau and White that she heard a noise from where she was standing. She described the noise as a thump. There was a dumpster located on the north side of Third Street, a short distance east of the intersection of Matheson Street and Third Street.  It was located immediately to the east of the green electrical box. She saw a man on Matheson Street across the street from where she was about at its intersection with Third Street. It appeared to her that he was throwing garbage at the dumpster.  He threw something down hard. It seemed that he was angry. She saw the man walk north on Matheson Street and disappear through the door at number 223.  She then saw him come back and throw something else towards the dumpster.  She saw him again disappear through the door at number 223.  She then crossed the street. What she thought was garbage was a man lying on the ground.  She made no observation of the man’s condition.  She went home and phoned her niece, Lydia Harlos.

[15]      The police located a duffle bag and two shoes near the body.  It was the opinion of Favreau and White that the noise that Heather Gunn heard which attracted her attention was the sound of the shoe or the duffle bag hitting the dumpster after it had been thrown by the man whom she saw.

[16]      She described the man whom she saw as being of medium build, wearing a white T-shirt with a design on the back and dark pants.  She saw him only from behind and from across the street.

[17]      The police noticed a woman looking out from a window above the door at number 223.  Favreau and White entered the door at number 223 and went up two flights of stairs to an apartment.  The woman whom they saw admitted them to the apartment.  She was Maria Campenella.

[18]      Maria Campenella told the police what happened that night.  She said that she shared the apartment with Carmel Temple.  At about 12:20 a.m. she was in bed in her bedroom alone in the apartment.  She heard someone handling the lock on the apartment door.  She thought at first that it might be her roommate.  When it became obvious that it was not her roommate she thought it must be someone whom her roommate authorized to enter the apartment.  She decided to phone her roommate at Hap’s Bar,  where she worked as a server.  She spoke to Justin Carambetsos, who was a bouncer at Hap’s.  Her roommate was not there.  The accused volunteered to come to her apartment, which was a short distance from Hap’s.  He came into the apartment.  Maria Campenella said that he was wearing a tan or brown sweater with stripes and tan pants.  He and Maria Campenella located a man asleep in a futon chair in the living room.  She described the man as a native male, wearing blue jeans, a teal shirt and a dark jacket.

[19]      Mr. Carambetsos told her to go back to her bedroom and that he would take care of the matter.  She heard him wake the man up.  She heard words exchanged between them.  Carambetsos escorted the man out of the apartment.  He returned to the apartment after about five to ten minutes.  They looked through the apartment together.  Mr. Carambetsos left.  He phoned her from Hap’s at about 12:50 a.m. to see if she was safe.

[20]      Zroback, Lundgren and Jorgenson all described injuries that they observed on the body of the deceased.  There were cuts on his face, including abrasions on his right eyebrow and forehead.  There was blood on the right side of his face and above his mouth.  His face was swollen.  There were abrasions on his back and right side.  His knuckles were skinned on the back of the hand.  Zroback said that it appeared to him that the victim had been assaulted.   Jorgenson said that it looked more like the deceased had been thrown around.  It was his opinion that none of the external injuries on his body appeared to be life threatening.  It did not appear that he had suffered any external injuries which would cause him to bleed to death.

[21]      All of the officers observed blood spatter on the sidewalk outside the door at number 223 and blood drops leading to where the body was found.  The blood spatter was more concentrated on the sidewalk immediately outside of number 223.

[22]      Jorgenson attended at the hospital where the deceased had been taken.  He seized clothing from the body of the deceased, which included denim blue jeans, a green sweatshirt and a denim jacket.  He noted an odour of alcohol on the deceased.  He found a CIBC bank card in the name of a female in his shoe and two CIBC teller printout accounts.  He searched through the duffle bag at the scene.  There was a tag on the duffle bag with the accused’s name.  He did not find a wallet, an Indian status card or any identification on the deceased.


3.         Decision to Arrest

 

[23]      Favreau, White and Ratchford met at the police station at about 5:25 a.m.  They had access to the evidence gathered by Jorgenson, Zroback and Lundgren.  Favreau and White came to the conclusion that they had reasonable and probable grounds to arrest Justin Carambetsos for manslaughter.  Ratchford was less confident that there were sufficient grounds.  He did not express his doubts.

[24]      Justin Carambetsos was known to the police.  Carambetsos testified about an incident at Hap’s in 1997 when he had ejected White from Hap’s because he was drunk and unruly.  He said that White had threatened to get a gun and come back to the bar.  He felt that White had been friendly to him before this incident but was not friendly to him after the incident.  White denied any recollection of this incident although he did not deny that it occurred.  He denied any animosity towards Carambetsos.

[25]      White had also investigated the accused for an assault on a man named Billy Edwards.  Another suspect was a police officer.  There was no evidence of identification.  White did not lay a charge because he did not have reasonable and probable grounds.  He was left with the gut feeling that the accused was involved.  Justin Carambetsos had a reputation with the police for being involved in incidents of violence.  White insisted, however, that this was not a significant factor in the decision to arrest Carambetsos for manslaughter. Other than the Billy Edwards incident, White could not cite any other incidents of violence in which Carambetsos was involved. Carambetsos does not have a criminal record.

[26]      It was the theory of the police that the blood on the sidewalk outside of number 223 was the result of injuries sustained by the deceased caused by Justin Carambetsos assaulting him.  Heather Gunn saw a man going in and out of number 223 Matheson at about the same time that Maria Campenella said the accused went in and out of her apartment.  The clothes described by the two women were different. Carambetsos is more accurately described as being of heavy or large build, rather than medium build. However, the police were prepared to discount the accuracy of the observations that Heather Gunn made because she was making them at night from a distance. The important point was that Heather Gunn described the man go into the door leading to Maria Campenella’s upstairs apartment. He did not come out. At about the same time, Maria Campenella said that Justin Carambetsos came into the apartment. A person entering that door has nowhere else to go other then Maria Campenella’s apartment.  It was their opinion that the accounts of the two women were of the activities of the same man, who must be Justin Carambetsos. 

[27]      Mr. Carambetsos was a long term resident of Kenora.  He was a bouncer in a bar.  He would know of the problem of public drunkenness in Kenora.  He would know that if the deceased was left on the sidewalk that he would be discovered by the authorities and treated appropriately.  It was the theory of the police that the blood on the sidewalk in front of number 223 Matheson was the blood of the deceased.  It was on the sidewalk as a result of the deceased bleeding from facial injuries caused by Mr. Carambetsos assaulting him.  Mr. Carambetsos placed the deceased where he was found by the police to hide him from plain view.  He did this in a clumsy attempt to delay the authorities finding the deceased and making it more unlikely that they would conclude that the accused was responsible for his death.  The police did not have an opinion from a medical person as to the cause of death.  However, it was their opinion that the deceased had died as a result of injuries sustained when Justin Carambetsos assaulted him on the sidewalk outside of number 223 Matheson.

[28]      White phoned the Crown Attorney, Richard Cummine, at about 5:45 a.m.  He described the police findings.  White said that Cummine expressed the opinion that the appropriate charge was second degree murder.  Cummine denied that he told White to arrest Carambetsos for second degree murder. He said that he told White that the appropriate charge was manslaughter or second degree murder. He said that he advised White to keep Carambetsos under surveillance until they had a cause of death.

[29]      Favreau was of the opinion that the appropriate charge was manslaughter because in his view it was a beating death.  Favreau formed an intention to arrest Justin Carambetsos for manslaughter.  Favreau instructed Ratchford to begin preparing an information in support of a Feeney warrant, which would give the police authority to arrest Mr. Carambetsos inside his residence.  Favreau took up what he called static surveillance outside the residence of Mr. Carambetsos at 605 Fifth Street South.

4.         The Arrest

 

[30]      At 8:00 a.m. Mr. Carambetsos left his residence, entered his Jeep motor vehicle and began to drive away.  Favreau stopped him.  He told him that he was under arrest for manslaughter.  The accused expressed surprise.  He said that he was going to see his lawyer.  Favreau said that he would have to come with him.  Favreau said that he told him that he had a right to a lawyer and the right to remain silent.  The accused denied that Favreau said this to him.  Favreau agreed that he did not further advise him of his right to counsel.  He did not read to him the standard notices on the inside of every police notebook, namely, “notice upon arrest” and “right to counsel,” “caution to charged person” and “secondary caution to charged person.” Favreau permitted him to park his vehicle.  He then placed him in his police vehicle in handcuffs and took him to the police station.

5.         Events at the Police Station

 

[31]      Favreau said that he entered the garage of the police station with the accused in the police vehicle.  He brought the accused into the booking area and placed him directly in a cell.  He did not seize any of his clothing.  He was aware that Ratchford attempted to contact Mr. Fregeau, who was the lawyer that the accused had said that he was going to see when he was arrested.  His next contact with the accused was at the police station.

[32]      Ratchford agreed that he was in the booking area when Favreau brought the accused into the police station.  He attempted to contact Mr. Fregeau.  He left a message on his answering machine. Favreau said that after he returned to the police station with Carambetsos, he had a conversation with Richard Cummine. He told Cummine that he had arrested Carambetsos for manslaughter. Cummine said that the charge was to be elevated to second degree murder. Favreau asked if there would be a problem with his having arrested Carambetsos for manslaughter. Cummine asked Favreau if he had taken a statement. Favreau said that he had not. Cummine said there would be no problem. Cummine denied that this conversation ever took place.

White’s version

[33]      White said that he arrived at the police station from the hospital at about 8:45 a.m.  He had a discussion with Fregeau.  He took the accused out of his cell and placed him in the interview room with Fregeau.  He placed him back in his cell after Fregeau was finished with him.  He had a further discussion with Fregeau before Fregeau left the police station.  White said that he took the accused into an interview room after Fregeau had left.  He did not give him a police caution.  He attempted to question him about the events that gave rise to the charge.  The accused refused to answer his questions.  The accused told White that his lawyer had advised him not to answer the questions of the police.  The accused was upset and crying.  White conceded that he told the accused that what he told him would be off the record.  White said that the accused told him that he did not want to speak to him about five times.  White denied telling the accused that he could help him or making comments about his lawyer.  White fingerprinted the accused and placed him back in his cell.

Carambetsos’s version

[34]      The accused said that when Favreau brought him into the booking area from the garage that they were met there by White.  He said that there was someone else there and that White said to that person that it was not necessary to seize the accused’s belt and pants.  The accused said that White placed him in a cell.  He then took him out of the cell and placed him in an interview room.  White asked him what happened.  The accused refused to answer his questions.  He said that he wished to speak to his lawyer, Mr. Fregeau.  White said that he would call him.  White placed the accused back in the cell.  When Fregeau arrived, White placed the accused back in the interview room to permit him to speak with Fregeau.  The accused told Fregeau that he had been arrested for manslaughter.  Fregeau said that he understood that the charge was second degree murder.  At the request of the accused he checked with the police and confirmed that the accused would be charged with second degree murder.  The accused said that he was babbling and that he was very upset.  Fregeau did not want Carambetsos to tell him what had happened.  Fregeau said that he would talk to him later at the court house.  The accused asked Fregeau to tell the police not to ask him any more questions.  Fregeau said that they would not but if they did he was not to answer them.  The conversation was quick.

[35]      After Fregeau left, White again took him into the interview room.  He sat across from him at a desk.  White asked him what the person did to make him mad.  The accused said that he would not answer his questions.  This dialogue took place about 20 times.  White became very angry.  He was yelling.  He said that they could talk like friends and that it would be off the record.

[36]      White said that if the accused was cooperative that White could help him.  The accused said that Fregeau was helping him.  White said that Fregeau would not spend the rest of his life in jail.  The accused refused to answer White’s questions.  White then fingerprinted the accused.  This took place in silence.  White placed the accused back in the cell.  He took away a magazine that he had given him earlier.

6.         Events at the Court House

 

[37]      Favreau and White transported the accused to the court house at about noon on October 4.  White brought with him an unsworn information charging Carambetsos with second degree murder of an unidentified male person on October 4, 2000.  White placed the accused in a cell.  He took the information before a justice of the peace where he swore to its accuracy on reasonable grounds.  White brought Carambetsos into bail court, where he appeared before a Justice of the Peace. Assistant Crown Attorney Maryanne Mousseau represented the Crown. Mr. Fregeau appeared with Mr. Carambetsos. He was arraigned on a charge of second degree murder. Based on Ms. Mousseau’s submissions, he was remanded into custody. Sergeant Favreau, Constable White and Ms. Mousseau all gave different versions of conversations that took place between them. They all agreed that Ms. Mousseau commented on the quickness of the investigation, expressed the view that the police should have seized the accused’s clothes and certainly should have seized his boots. The police said that they had not seized his clothes because they did not believe that he was wearing the clothes that he was presently wearing at the time that the victim was removed from the residence of Maria Campenella. White escorted Carambetsos out of the court room. Favreau followed them out. They met in the corridor leading to the cells. Favreau told White that he thought they should seize Carambetsos’s boots. White was of the view that they needed a warrant, the accused’s consent or an admission by Carambetsos that he was wearing the boots when he removed the intruder from Maria Campenella’s apartment to have the authority to seize the boots. Favreau said that based on his conversation with Ms. Mousseau, that he believed that the police had the authority to seize the boots incident to the arrest. He said before he seized the boots he would inform Mr. Fregeau of his intention. He went to get Fregeau from the public area. Favreau returned to the corridor. Fregeau came into the corridor a short time later. White asked Carambetsos if he was wearing the same clothes as he was wearing when he removed the intruder. Carambetsos said that he was not. Carambetsos said that his pants had blood on them from dragging the guy. He said that he had left his pants at his father’s place. He motioned with his hands over the front of the pants that he was wearing as he was saying this. Favreau said that he would get a warrant to seize the pants at his father’s place. White then asked Carambetsos if he was wearing the same shoes that he was wearing the previous night. Carambetsos said that he was. Favreau directed him to take his shoes off. He did this and Favreau seized them. Fregeau said to Carambetsos, “I told you that you do not have to say anything to these people.”

7.         Post-Arrest Investigation

 

[38]      Ratchford obtained a warrant to search the residence of the accused’s father, George Carambetsos, for the accused’s pants.  He and White executed the warrant.  They were unsuccessful in locating the pants.  At about 4:07 p.m. on October 4, Ratchford and White went to the jail to interview the accused.  He was brought into a small interview room.  They did not advise him of his right to counsel and they did not caution him.  The accused asked if he had to speak with them.  Ratchford told him that he did not.  White accused Carambetsos of lying to them about the location of his pants.  Carambetsos insisted that he had left his pants at his father’s house in a bedroom.  White became angry.  At Ratchford’s suggestion White left the room.  The accused said that he wanted to speak with Ratchford.  He told Ratchford that after he left work he went to his father’s place.  He changed his clothes and left his pants on the floor of his bedroom.  He told his father what had happened.  He told Ratchford that he found the guy in the apartment and brought him outside.  He was upset.  His voice was trembling and there were tears in his eyes.

[39]      At 2:08 on the afternoon of October 4 White interviewed Mark Bissonette.   He was the owner of Hap’s.  He employed the accused.  He said he was at the bar between 12:30 and 2:30 a.m.  When he arrived at the bar another employee told him that the accused had gone to investigate a report of an intruder at Carmel’s house.  Bissonette talked to the accused when he returned.  The accused told him that he received a telephone call from Maria.  She thought that someone was in her apartment.  He went over to her apartment to check it out.  They discovered a guy sitting on the couch in the living room.  He said that the guy came at him, he hit him and he dragged him out.  At the end of the night he said that Carmel had called and the police were investigating a homicide.  He pointed at blood on the thigh of his pants and said, “I didn’t kill the guy”.  He did not know what to do.  He started welling up with tears.

[40]      On October 5 White and Jorgenson attended in Winnipeg at the postmortem conducted by Dr. Kelly McDonald.  Dr. McDonald identified scraping injuries on the deceased that were consistent with his being dragged.  The injuries were all recent.  There was an injury on the right side of his neck below his jaw line that would not likely have been caused by a fall.  Dr. McDonald was of the opinion that he died as a result of a torn vertebral artery caused by a blow to the neck.  He died from internal bleeding.  The victim would have died very soon after receiving the blow.

[41]      On October 5 at 7:35 p.m. he interviewed Trevor Guderyan.  He said that at about 12:30 a.m. on the morning of October 4 he drove north on Matheson Street past Canadian Tire to Third Street.  He was going to Hap’s after playing hockey.  He was with a man named Koz and was following a vehicle being driven by a man named Tak.  His attention was drawn to what appeared to be a fight by Koz.  He saw someone laying on the ground with his feet toward the Northlands. This was an apartment building located directly across Matheson Street from Lee’s Satellites. He saw Justin Carambetsos throw something underhand like boots from behind his Jeep at about 45 degrees to the guy laying on the ground, from a distance of about 10 feet.  He went to Hap’s, where he had some drinks with his friends.  Justin came into Hap’s and joined them.  He said that a friend called him and told him that a guy was trying to get into her apartment.  He went there and dragged the guy out.  It was a short episode.  He was left with the impression that there was a wrestling match in the apartment.  He said that Justin, “made it sound like the guy was all pissed up” and that Justin “looked a little pissed off”.

[42]      At some point, the police interviewed the man referred to by Guderyan as Koz, who was Brian Kozak. He testified at the preliminary hearing. He was a passenger in the vehicle driven by Guderyan. He testified as follows at the preliminary hearing:

“Q.    Alright. So, you see the Jeep, is there anything else that you see?

A.     Justin outside.

Q.     Okay, Justin outside of what?

A.     Of approximately two, around 225.

Q.     Alright, how far away from where you were seated in the vehicle to, to where Justin was, would you estimate the distance?

A.     It, it closed obviously as we were moving…

Q.     Right.

A.     …so I’d, at first, maybe three or four car lengths.

Q.     And what was Justin doing?

A.     It looked like he was, he was walking towards his Jeep and then he turned and it looked like he was throwing something and that was it.

Q.     Okay, so his Jeep would have been further north of where he was when you first saw him?

A.     Right. North being, up that way, right, to the top of the thing? Oh, that little thing there, that helps, okay, yeah.

Q.     And so, you see him walking north and he turns and does what?

A.     He looked like he was throwing something.

Q.     Okay, did you see anything in his hand?

A.     Yeah, yes. But I can’t rightly remem, like recollect exactly what it was.

Q.     My next question was going to be, can you give an estimation of the size?

A.     About exactly what you just did right there. This, this big.

Q.     Okay, you’re…

THE COURT:  Indicating about a foot long?

A.     Yeah, approximately a foot long, but again, it was just something quick.

MR. JUKES:    Q.        Something quick?

A.     Yeah.

Q.     And then what did you see Justin do?

A.     He was walking, then he was walking back towards his Jeep.

Q.     Right, and then what did you see?

A.     I noticed right by that 225, the end of the building there, between that and I don’t know what it is, a little metal, something to do with hydro I think, electricity, and there was a person laying down there.

Q.     Okay. Did you get a good look at the person laying down…

A.     No.

Q.     …there or just in passing?

A.     Yeah.

Q.     Could you tell if the person was face up or face down?

A.     Not correctly, but I think, I think, I know the shoes were facing.

Q.     And could you tell how the person was attired that was lying on the ground?

A.     I don’t, it’s, it’s more or less a common thing in Kenora so I don’t, if it was somewhere else I might, you know, take a look but no, I don’t really, I just drive by pretty much.”  (Vo. 8, p. 78 l. 13 - 80 l. 15)

 

[43]      On October 6 at 8:07 a.m. he interviewed Constable Lundgren.  Lundgren told him that he and Zroback received a call that “a guy was getting beaten up by three guys” on Matheson Street near Third Street South.  He said that the body that they found seemed to be “wedged in between the wall and the box”.  He had difficulty removing him from where he was laying.  Zroback helped him.  Lundgren said, “he was kind of stuck in there, kind of wedged in between there”.

[44]      On October 6 at 10:35 a.m. he took a videotaped statement from Heather Gunn. She confirmed the essential aspects of the statement she gave to White and Favreau in the police car on the morning of October 4.

[45]      On October 6 at 1:06 p.m. White interviewed Carla Parth.  She was a server at Hap’s.  She said that about 12:00 midnight on October 4, following a telephone call from Maria Campenella, Justin said that he was going over to her apartment to investigate an intruder.  He left in his Jeep.  He returned about ten minutes later.  He had blood on his pants.  She told him to wash his pants.  Carmel phoned him about ten minutes after he returned.

[46]      On October 6 at about 3:30 p.m. he interviewed Darren Tacknyk. This was the man who was driving a vehicle that Guderyan was following on the morning of October 4, who observed Carambetsos throw shoes at a man lying on the ground. Tacknyk said that he saw Carambetsos dragging a native man face-down, backward down the sidewalk. Tacknyk speculated whether the man was drunk or passed out. He said that Carambetsos had hold of the man with two hands as he was going around the corner. He said that he just dropped him. He thought the man’s head was facing east.

[47]      Jorgenson did a forensic examination of the apartment of Maria Campenella on October 6.  He located a spot of blood on the inside arm of the futon chair where the deceased was found.  There were three flakes of blood two to three feet from the chair.  There were two small spots of blood eight feet from the chair.  There were two small spots of blood at the base of the stairs.  There was a concentration of blood stains on the sidewalk outside the door at 223.  In this location one blood stain was about ten inches by eight inches and another was about one by three inches.  Selective blood stains were determined to be the blood of the deceased.  The blood stains on the sidewalk were smeared in a southerly direction.

[48]      On November 15, 2000, Dr. Mayers, a toxicologist from the Centre of Forensic Sciences, provided a report which stated that the blood alcohol level of the deceased at the time of his death was 310 milligrams of alcohol per 100 millilitres of blood.

[49]      The police obtained DNA analysis which expressed the opinion that the blood of the deceased was on the toe of the boots seized from the accused by Favreau.  They also obtained an opinion from an expert that markings on the deceased’s neck were consistent with the structure of the toe of the accused’s boots.

8.         The Police Statements

[50]      After the preliminary hearing, Mr. Mitchell sent a letter dated July 17, 2001 to George Curtis, the chief of the police for the Kenora Police Service, in which he severely criticized the conduct of Sergeant T. Favreau in the investigation of this case. In light of its importance, I will quote the entire letter as follows:

“July 17, 2001

Chief George Curtis

Chief of Police

Kenora Police Services

P.O. Box 1910

1125 Highway 17 East

Kenora, ON  P9N 3X8

 

Dear Chief Curtis:

 

SUBJECT: REGINA V. JUSTIN CARAMBETSOS

 

Mr. Trevor Jukes and I met with you on the morning of Thursday, June 27, 2001 to discuss the serious concerns that we had about the investigation which the Kenora Police Services had conducted into the homicide of Mr. Max Kakegamic. At that time we were involved in presenting the evidence at the preliminary hearing which occurred between June 26-29, 2001, in Kenora. On Friday, June 29, 2001, Mr. Justice Don Fraser committed Mr. Carambetsos to stand trial on a charge of manslaughter in connection with Mr. Kakegamic’s death.

 

I indicated to you that this letter would be forthcoming to commit to paper what we had verbally conveyed to you. I realize that you are familiar with this matter and, rather than outline the entire circumstances of the case, I shall focus on what Mr. Jukes and I perceive to be certain deficiencies in the investigation.

 

As you know the investigation was assigned to Sergeant Tom Favreau your ‘head’ of criminal investigation. It is our understanding that he was responsible for supervising the work of the other C.I. detective, P.C. Lloyd White and the Ident. Officer Sergeant Dan Jorgenson. In our review of the case it was apparent that apart from this “titular” role, Sergeant Favreau was largely absent from an active, supervisory, directory involvement in the investigation and that Sergeant Jorgenson and P/C. White were virtually on their own. While diligent and working to the best of their abilities, these two officers lacked the necessary support and guidance of an experienced criminal investigator or major crimes case manager to focus their efforts. Consequently, a number of mistakes were made that could have been avoided and which may now impact detrimentally on the prosecution of the case.

 

Apart from abrogating his responsibility in being the lead investigator in this case, and supervising his colleagues I must advise you of the following other serious shortcomings in the investigation and Sergeant Favreau’s performance:

 

1.                  Mr. Carambetsos was arrested by Sergeant Favreau and charged with the serious offence of manslaughter at a time when critical information/evidence was not yet known to the police. There was no cause of death of the victim, no direct evidence that Mr. Carambetsos had physically assaulted him, and nothing that linked him to the victim’s death other than being present to evict him as a trespasser from a friend’s apartment. In fact the only evidence of the identity of the assailant(s) was from information transmitted to P.C. Lundgren and Zrobak that “three males” had been seen beating the victim.

 

2.                  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 Faverau’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.

 

3.                  Sgt. Favreau neglected to read Mr. Carambetsos his Charter Rights, a Caution and a Supplementary Caution upon arresting him for manslaughter. His cursory reference to these positive, very elementary legal obligations at the time of the arrest (as indicated during his testimony on June 27, 2001) was a major error/oversight. It is appalling that in this day after almost two decades of exposure to the Charter, that there is an office [sic] in C.I. or anywhere who could make such a mistake. This critical blunder may have serious ramifications for the Crown’s ability to introduce the key piece of evidence subsequently seized from the accused which links him to the homicide.

 

4.                  Sgt. Favreau neglected to re-arrest, re-caution and re-read Mr. Carambetsos his Charter Rights upon the charge being elevated to Second Degree Murder. This second error compounded the initial one any may lead to similar complications for the prosecution in this case.

 

5.                  Continuity and control over that part of the scene involving Maria Campanella’s apartment was never asserted and maintained even though both P.C. White and Sergeant Favreau were in there within hours of the occurrence and should have been aware of the need to preserve its integrity until Sgt. Jorgenson concluded his investigation. Again, a lack of understanding of the law of search and seizure as well as more basic techniques of scene preservation characterized this aspect of your C.I. Team’s work.

 

6.                  Sgt. Favreau presided over the seizure of the shoes of Mr. Carambetsos in the antechamber of the Kenora Courtroom following his arraignment on the charge of second-degree murder. An accompanying statement linking the shoes to the preceding evening’s activities was also received at this time. A host of questions arise in connection with this seizure not the last of which are the timing and manner of its execution. Again, and since these shoes are critical evidence in the prosecution, the Crown will face significant legal challenges to their admissibility thanks to the actions of the arresting officer.

 

This letter is being written to express to you in as strong as terms as possible the need for the Kenora Police Services to engage a competent Criminal Case Manager/Lead Investigator for all your Major Crimes Occurrences. While a number of your officers distinguished themselves in their compassionate quick response to Mr. Kakegamic’s distress (notably P.C. Lundgren and P.C. Zrobak) and others such as Sgt. Jorgenson and P.C. White worked tirelessly and to the best of their ability to investigate and develop the case where we could actually prosecute it with some credibility, your C.I. Management and quality control was deficient in the extreme. In this era where not only persons wrongly accused can and do sue governments, police agencies and prosecutors but also victims whose expectations in justice are dashed, there is no room for the kinds of errors that were made in this case.

 

I look forward to discussing this matter further with you on one of my several anticipated visits to Kenora to deal with this case.

 

                                                               Yours very truly,

 

 

 

                                                               Daniel M. Mitchell

                                                               Crown Attorney

 

DMM/ket

 

cc:          Tom Fitzgerald

               Director of Crown Operations

 

cc:          Richard Cummine

               Crown Attorney

 

cc:          Trevor Jukes

               Assistant Crown Attorney”

 

[51]      On August 3, 2001, Curtis removed Favreau from his position as head of criminal investigation.

[52]      On or about September 13, 2002 Mr. Gibson, on behalf of the accused, delivered an application record supported by an affidavit of the accused sworn September 12, 2002 in which he alleged a number of Charter breaches by the Kenora Police Service in relation to the arrest of the accused. He sought an order excluding from evidence at the trial statements made by the accused to the police at the time of his arrest and any physical evidence derived from the alleged Charter breaches.

[53]      On September 17, 2002 Mitchell came to Kenora. He met with Chief Churtis, Deputy Chief Ponton and Sergeant Jorgensen. He provided the chief with a copy of the accused’s affidavit. He asked that the chief assign a senior officer to obtain responses from Favreau, White, Ratchford and Jorgensen to the accused’s affidavit. Curtis assigned Ponton to obtain the officers’ responses. Mitchell followed this meeting up with a memorandum dated September 20, 2002 to Deputy Chief Ponton in which he gave specific instructions as to what he wanted from each officer.

[54]      Ponton had not been involved in criminal investigations for seven years.  His first thought was to obtain witness statements from the officers in individual interviews.  He rejected this procedure because he has arthritis in his writing hand which inhibits him from writing for other than short periods of time.  He also considered having a stenographer present while he took the statements.  He might also have considered tape recording the statements.

[55]      Sergeant Jorgenson created a template on a computer disk.  He created questions for each officer related to the areas of concern as stated in Mitchell’s memorandum.  Ponton accepted Jorgensen’s recommendation that each officer be given a disk with the template on it.  They could then use the template to construct their answers.

[56]      The officers were unfamiliar with Charter motions.  They had not the least idea as to the use to which the accused’s affidavit and their responses would be put.

[57]      Each officer submitted a disk containing their statement.  A hard copy was made and each officer signed it in front of Ponton.

[58]      To address their concerns about the procedure at the direction of the Chief, Ponton called a meeting of the four officers on October 10 at 2:00 p.m.  He attempted unsuccessfully to get Mitchell on a speaker phone to answer the officer’s concerns.

[59]      After this Ponton read the accused’s affidavit aloud.  The accused alleged that White was in the police garage and then the booking area when he was brought into the police station under arrest by Favreau.  White and Favreau agreed with this in their statements.  Ratchford said that his recollection was that White was not there.  He thought that it was he who had received the accused from Favreau.  Jorgensen obtained the booking-in records.  It showed that the accused was arrested at 8:26 a.m. and came into the station at 8:30 a.m.  White’s notes showed that he was at the hospital until 8:33 a.m.  White agreed that it was not possible for him to have been at the police station when the accused was brought into the station.

[60]      Ponton gave White and Favreau back their disks and the original signed statements. White and Favreau changed their statements on the disk. They brought back the changed statements to Ponton – Favreau that day and White on October 28, 2002. They signed them and left them with the disks. They did not leave Ponton with the original signed statements. Favreau said that he used his as a working copy and that he shredded it. White was not able to explain what happened to his original signed statement.

[61]      In his new statement, Favreau stated that Ratchford, rather than White, met him and Carambetsos in the secure area of the police station when he brought Carambetsos into the police station. White stated that Carambetsos was already in the cell in the police station after he arrived there from the hospital.

[62]      On October 16, 2002 Jorgensen, using the disks of each officer, emailed the new changed statements from the Chief’s office to Jukes.

[63]      Jorgensen was in touch with Mitchell by phone a few days after October 16, 2002. He told him that there had been a meeting of the four officers. He said that they had reviewed together the affidavit of Carambetsos.

[64]      Assistant Crown attorney Trevor Jukes appeared for the Crown with Mitchell at the preliminary hearing. He was familiar with the case. He sent a letter dated October 28, 2002 to Ponton. He requested independent statements from each of the officers about what happened at the meeting. There was urgency, since pre-trial motions were set to commence on November 12, 2002.

[65]      On October 31, 2002, Curtis left a message on the voicemail of Jukes that he wished to speak with either him or Mitchell.

[66]      On October 31, 2002, Curtis spoke by telephone with Mitchell. The telephone conversation was recorded unknown to Mitchell by an automatic recording system in the Chief’s office. The Chief was angry. He wanted Mitchell to come to Kenora and explain to the four officers the process of a Charter motion. The officers did not understand the use to which the Crown would put their statements. They were afraid that the Crown had turned against them. They were concerned that the Crown felt that the case was lost. The Crown was orchestrating a situation in which they would be made scapegoats for the failure of the prosecution. Mitchell attempted to reassure the chief. Curtis promised that the officers would provide the requested responses.

[67]      On November 1, 2002, Ponton spoke by telephone with Jukes. He told Jukes that White and Favreau had changed their statements. That afternoon, he sent to Jukes the officers’ responses to his letter dated October 28, 2002. He also sent to Jukes what purported to be unsigned copies of the original statements that Favreau and White had given to him prior to the meeting on October 10, 2002. These unsigned originals came from the files of Favreau and White.

[68]      Favreau gave Ponton the amended statement on October 10 after the meeting. Ponton believed Favreau gave him what he said was a copy of the unsigned original some time after October 10 but before October 31. White gave him the amended statement and what he said was a copy of the unsigned original on October 28.

[69]      Mitchell called for an investigation by the OPP. The OPP conducted videotaped interviews of Favreau, White, Jorgensen, Ratchford and Ponton regarding the October 10 meeting and the changing of the statements. The OPP also undertook an investigation of the investigating officers in the Carambetsos prosecution to determine if either Criminal Code charges or Police Act charges should be laid. Further, the OPP has now taken over the police prosecution of the case. It is now the OPP, rather than the Kenora Police Service, which assists and advises the Crown.

[70]      Inspector Deasy of the OPP interviewed Ponton on December 4. On December 5 Ponton, at the request of Deasy, turned over to him the statement that Favreau had given him in response to Jukes’s request of October 28. Favreau told Ponton that this was a copy of the original statement that he had shredded. Earlier, sometime after October 10, Ponton had received from Favreau what Favreau said was a copy of the original that he had shredded. These two documents should have been the same. However Favreau’s statement that Ponton received after October 10 had the numbers 4DLE42F in the top left corner. Ponton thought that these numbers were an imperfection that had been caused by photocopying. Unknown to him, Favreau, for reasons which he could not explain, had whited out these numbers between the first and second times that he gave Ponton copies of the document. This is why they did not appear on the document that he gave to Ponton in response to the letter of Jukes dated October 28. Ponton shredded the document with these numbers on it. He photocopied the document with the numbers whited out to replace it. The OPP seized his file after he first testified on January 23. He was recalled on January 30. When he was presented with Favreau’s purported unsigned original statement from his file, it did not have the numbers on it. At that time, he disclosed what he had done.

[71]      The document which Favreau said was his unsigned original was not dated or timed. The signed original which Favreau shredded would very likely have a date and a time on it. Mr. Gibson is likely right when he says that this is a third document associated with Favreau.

9.         The Case Against Danny Favreau

[72]      White and Favreau interviewed Lydia Harlos and Heather Gunn on the morning of October 4. White took notes. Favreau did not take notes. White testified that Lydia Harlos said that Heather Gunn told her that Danny Favreau was in the area. His notes reflect this. White testified that when he and Favreau interviewed Heather Gunn across from the crime scene that she did not mention Danny Favreau. He was taking notes as she was speaking to him. There is nothing in his notes about Danny Favreau in relation to this interview. At the preliminary hearing, Sergeant Favreau said that Danny Favreau was not a suspect. In his evidence at the pre-trial motion, he testified that Heather Gunn, in the interview on October 4, said that Danny Favreau was the person she saw go from the body into the middle door and disappear. He said that when she said this, he immediately exited the vehicle and instructed Constable Ratchford to attempt to locate Danny Favreau. Constable Ratchford said that he tried unsuccessfully to find Danny Favreau in an apartment above the Bizzi Bee on the southeast corner of Matheson and Second Street. His evidence is not clear as to why he thought Danny Favreau might be there. Favreau explained that the reason that he said at the preliminary hearing that Danny Favreau was not a suspect was because once he and White interviewed Maria Campenella, he was convinced that Heather Gunn was wrong about seeing Danny Favreau.  From the information that they acquired from Maria Campenella, Justin Carambetsos must have been the person who went through the middle door.  Danny Favreau was no longer a suspect. In her videotaped statement on October 6, Heather Gunn makes no mention of Danny Favreau. She does say that she saw a man with a white peak cap go from the body north on Matheson Street. At the preliminary hearing, she said that the man could have been Danny Favreau. She also said in her videotaped statement and at the preliminary hearing that when she went back to where the body was when the police arrived, the body appeared to have been moved slightly. The man’s pockets had been pulled out and he appeared to have been robbed. Photographs taken by the police of the deceased after they pulled him onto the sidewalk show that his pants were not pulled out. They also showed him wearing tightly fitting jeans with pockets that would likely not pull out readily. The only evidence that she said that the man who went through the middle door was Danny Favreau comes from Sergeant Favreau. She does not say in her videotaped statement or at the preliminary hearing that the man who went through the middle door was Danny Favreau. She does not say in her videotaped statement nor at the preliminary hearing and she is not reported to have said that she saw Danny Favreau in contact with the body. Constable Ratchford interviewed Danny Favreau on October 13. He said that he was in Winnipeg on the morning of October 4. He provided two witnesses whom he said would confirm this. One of the witnesses did not confirm this. There is no evidence that the other witness was interviewed.

 

10.       Analysis

 

A.     Exclusion of the Boots

 

(i)            Section 9

 

[73]      The relevant legislation is as follows:

Charter

 

“S. 9.  Everyone has the right not to be arbitrarily detained or imprisoned.”

 

Criminal Code

 

“S. 495(1)  A peace officer may arrest without warrant

 

(a)    a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence”

 

“S. 229  Culpable homicide is murder

(a)    where the person who causes the death of a human being

(i)      means to cause his death, or

(ii)    means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.”

 

S. 234  Culpable homicide that is not murder or infanticide is manslaughter.”

 

[74]      Manslaughter and murder are indictable offences. The police may arrest without a warrant a person for an indictable offence if they have reasonable and probable grounds. In R. v. Storrey,[1] Justice Cory speaking for the Supreme Court of Canada described the evidence which the police must have to arrest for an indictable offence as follows:

“In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.”

 

[75]      There are various tests which Crown attorneys or police officers must meet before taking steps to advance a prosecution. Arrest on reasonable and probable grounds is the first step. It is the lowest standard in the continuum that ranges to proof beyond a reasonable doubt for conviction. This concept was well articulated in R. v. Censoni,[2] a judgment of Justice Hill, in which he quotes from the Martin report as follows:

“It is to be remembered that the concept of reasonable and probable grounds resides in a continuum of standards of proof within the criminal process. The matter was perhaps best described at page 71 of the Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (1993, chaired by the Honourable G.A. Martin) (the Martin Committee Report):

It has long been recognized in our law that at various stages in the criminal process the requisite standard of proof varies. For example, a charge is properly laid, even though there is nothing more than reasonable grounds to believe that the accused person is guilty. Likewise, an accused is properly committed for trial even if there is nothing more than a prima facie case. But ultimately, an accused person will, in most cases, be entitled to an acquittal unless, at the end of the case, guilt is proven beyond a reasonable doubt. As proof beyond a reasonable doubt is a higher standard than whether there is a reasonable prospect of conviction, it may well be that a reasonable doubt about the guilt of the accused can exist notwithstanding that the latter standard is met. (footnotes omitted)

Reasonable grounds has been described as credibly based probability – reasonable probability: The Queen v. Baron et al (1993), 78 C.C.C. (3d) 510 (S.C.C.) at 531-2 per Sopinka J.”

 

Manslaughter

[76]      Favreau made the decision at 6:25 a.m. after consultation with White and Ratchford to arrest the accused for manslaughter.  It is necessary to assess what evidence the police had at that time to conclude that the accused had committed manslaughter.

[77]      A person may be convicted of manslaughter when he causes the death of another by assaulting him where the risk of bodily harm from the assault is neither “trivial or transitory” (R. v. Creighton (1993), 83 C.C.C. (3d) 346 (S.C.C.)). In the circumstances of this case, to arrest Carambetsos for manslaughter on Max Kakegamic, the police required reasonable and probable grounds of the following:

1.                  That it was Justin Carambetsos who deposited Max Kakegamic behind Lee’s Satellites in the space between the electrical box and the south wall of the building, where Lundgren and Zroback found him;

2.                  That Justin Carambetsos assaulted Max Kakegamic;

3.                  That it was injuries arising from the assault that resulted in the death of Max Kakegamic.

Identity

[78]      Maria Campenella provided the police with evidence that Justin Carambetsos removed an intruder from her apartment. Maria Campenella said that after removing the intruder Justin Carambetsos returned to her apartment. The police found Max Kakegamic around the corner from her apartment within 20 minutes to one-half hour from when she said that Carambetsos removed the intruder.  The clothing and race of the intruder that she described to the police matched that of the body.  In the same time frame that Maria Campenella said that the accused removed an intruder from her apartment, Heather Gunn saw a man throw something at a dumpster close to the body of the deceased.  She saw that man go into the door leading to Maria Campenella’s apartment come outside and again throw something in the direction of the dumpster. He then disappeared through the same door. Heather Gunn then crossed the street and located a body where she thought garbage was being thrown.  The description of the clothing of the man going in and out of the door that she gave to the police does not match the clothing that Maria Campenella gave to the police of Justin Carambetsos.  Also, Heather Gunn described the accused as of medium build.  A more accurate description of Carambetsos would be a man of large or heavy build.  However, Heather Gunn was making her observations from some distance in the dark.  

[79]      The only apartment leading off the doorway where the man disappeared who was observed by Heather Gunn was the apartment of Maria Campenella.  The events described by Maria Campenella and Heather Gunn all happened in the same time frame.  It would be reasonable to conclude that the man seen by Heather Gunn was the same man that Maria Campenella said removed an intruder from her apartment, and that man was Carambetsos.  It would also be reasonable to conclude that the intruder in Maria Campenella’s apartment was Max Kakegamic whom the police discovered dead on the street around the corner from her apartment.

Assault

[80]      When Justin Carambetsos came back into the apartment, Maria Campenella did not report that he was exhibiting any injuries. There were bruises, cuts and blood on the deceased’s head when the police found him. There was blood spatter on the sidewalk outside of the door leading to the apartment. There was a blood trail to where the police discovered the body. Heather Gunn said that the person whom she saw threw something down hard. She said that he appeared to be angry. If Justin Carambetsos was using the minimum force required to remove a trespasser from the apartment of Maria Campenella, he might be expected to leave the man on the sidewalk. He might be expected to phone the police and notify them of his location. He might even be expected to have waited until the police arrived. Csts. Zroback and Lundgren testified that it was not unusual to find intoxicated vagrants on the streets in Kenora. Lundgren said that he routinely on a shift removed four to five intoxicated persons, and sometimes as many as 20 – 50. As a bartender, Carambetsos would know that dealing with intoxicated persons was routine work for the police in Kenora. It could be inferred from Carambetsos placing the victim behind Lee’s Satellites that he wanted to hide him in order to avoid detection that he had assaulted him. From this evidence it would be reasonable for the police to conclude that Justin Carambetsos assaulted Max Kakegamic.

 

Death from Assault

[81]      Max Kakegamic entered the door from the sidewalk of Matheson Street. The door led into a short hallway. He walked down this hallway to a flight of stairs. He climbed the flight of stairs to a landing. He made a 90 degree right turn at the landing and climbed a second flight of stairs to another short hallway. He went down this hallway to the door of Maria Campenella’s apartment. The door was unlocked. He turned the doorknob and went inside the apartment. He walked down a hallway in the apartment past the bedroom where Maria Campenella was. He entered the living room. He made a left turn when he entered the living room. He walked to the far side of the living room where he went to sleep.

[82]      Justin Carambetsos and Maria Campenella located Max Kakegamic together. Maria Campenella said that she approached the victim where he was sleeping in a chair in the living room to a distance of about 10 feet. She could only see the lower part of his face. The room was well lit. She did have a reasonable opportunity to see him. She did not see any sign of injury on the deceased. She also did not see any blood.

[83]      Maria Campenella said that she heard conversation between Justin Carambetsos and Max Kakegamic. Carambetsos woke Kakegamic up. Maria Campenella described what she said to the police as follows:

“Q:       Okay. And what’s the next thing you told the police officers about what happened?

A:         That I had gone into my room and that from my room I heard Justin trying to wake up the person, umm…getting him up, trying to get him, like to wake up and how he was trying to wake him up, like ‘Get up buddy, get up, you’re in somebody’s apartment, you have to get up,’ and that I heard some grunting sounds and that I finally heard them walking down, down the hallway, ‘cause it’s all hardwood floors and I heard them walking down the hallway and the guy turning around and saying, ‘What’s going on, what the fuck is going on,” umm…and then them leaving the apartment, going down the stairs and them going outside the door and then the Matheson Street door closing.’ (Vol. 5, p. 20)

 

[84]      Clearly the evidence was that when Justin Carambetsos removed Max Kakegamic from the apartment of Maria Campenella, he was alive and well.

[85]      The police found no vital signs on Max Kakegamic. He was pronounced dead by a doctor a short time later. It would be reasonable to conclude that he died between the time when Justin Carambetsos escorted him out the door of Maria Campenella’s apartment and when the police found him.

[86]      One could speculate that he died from any number of natural causes. A more probable cause of death would be internal injuries resulting from either Carambetsos assaulting him directly with his fists or boots, or throwing him down behind Lee’s Satellites. It would be reasonable for the police to conclude that this is what happened.

Conclusion

 

[87]      In my view, the police had evidence that would satisfy a reasonable person that there were reasonable and probable grounds to believe that Carambetsos had assaulted the victim and that the assault had caused his death. Favreau and White had a subjective belief of this. I therefore hold that the police had reasonable and probable grounds to arrest Carambetsos on the Storrey test for manslaughter. His arrest for manslaughter did not breach section 9 of the Charter.

The Murder Charge

[88]      White testified that Cummine told him in a telephone conversation at 5:30 a.m. that Carambetsos should be charged with second degree murder. After this, Favreau directed Ratchford to begin preparing a Feeney warrant for the arrest of Carambetsos on a charge of manslaughter. This would give him the authority to enter the residence of Carambetsos to arrest him on a charge of manslaughter. Favreau took up surveillance outside Carambetsos’s residence with the intention of arresting him for manslaughter if he came out of his residence. This is what happened. White relieved Favreau for a period of time in maintaining surveillance outside Carambetsos’s residence prior to the arrest. Favreau was in charge of the investigation. If the police intended to follow the direction that White said Cummine gave him to prosecute Carambetsos for second degree murder, it is difficult to understand why Favreau did not arrest Carambetsos for second degree murder rather than manslaughter.

[89]      Favreau said that he discussed with Cummine that the charge would be second degree murder at the police station before Carambetsos was brought to court. When White and Favreau brought Carambetsos to Provincial Court to appear in bail court, White brought with him an unsworn information charging Carambetsos with the second degree murder of Max Kakegamic. White swore before a Justice of the Peace that he had reasonable grounds to believe that Carambetsos had committed this offence. Maryanne Mousseau was the Crown attorney in bail court. She gave evidence that she was briefed by White of the evidence that the police had against Carambetsos prior to her appearing in court to seek him remand in custody. She said that White told her that they had a witness to Carambetsos beating the victim and a confession from Carambetsos. This goes to the identity of Carambetsos and is evidence in support of a charge of manslaughter. She was also told that there had not been a post-mortem and that the police did not have a medical opinion of the cause of death. Clearly there was no evidence at this stage of the proceedings to support a charge of second degree murder.

[90]      For a person to be guilty of murder, he must have an intention to kill or an intention to cause bodily harm with knowledge that death is likely to ensue and to be reckless of the consequences.

[91]      White in these proceedings, could not say that he had a subjective belief when he swore the information that Carambetsos had committed murder. There was certainly no objective grounds to support a murder charge.

[92]      It was Ms. Mousseau who represented the Crown at the bail hearing. The transcript of these proceedings was not filed. She could not possibly have presented a case on the information that she said that she had that the Crown had evidence that Justin Carambetsos had committed second degree murder. Carambetsos was imprisoned by an order of the Justice of the Peace on a charge of second degree murder. In my view, he was imprisoned arbitrarily in the absence of evidence to support the charge. His detention on a charge of second degree murder violated his rights under s. 9 of the Charter.

(ii)        Sections 7, 10(a) and 10(b)

 

[93]      The relevant sections of the Charter are as follows:

“S. 7  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

 

“S. 10.  Everyone has the right on arrest or detention

            (a)  to be informed properly of the reasons therefore;

(b)  to retain and instruct counsel without delay and to be informed of that right.”

 

[94]      The duties of the police under s. 10(b) of the Charter was summarized in R. v. Feeney[3]  as follows:

“Section 10(b) states that, ‘Everyone has the right on arrest or detention to retain and instruct counsel without delay and be informed of that right.’ With respect tot the informational component of a proper s. 10(b) caution, R. v. Brydges, [1990] 1 S.C.R. 190, 53 C.C.C. (3d) 330, held that the detainee must be informed of the applicable duty counsel and legal aid systems available in the jurisdiction. R. v. Pozniak, [1994] 3 S.C.R. 310, 92 C.C.C. (3d) 472, 118 D.L.R. (4th) 205, and Bartle, supra, further held that the detainee must be informed of any opportunity to access immediate, free legal advice, such as the existence of a 1-800 telephone number.

The requirement that a person be informed of his or her s. 10(b) rights begins upon detention or arrest. According to R. v. Therens, [1985] 1 S.C.R. 613, 18 C.C.C. (3d) 481, 18 D.L.R. (4th) 655, detention under s. 10 of the Charter occurs when a peace officer assumes control over the movement of a person by demand or direction.”

 

[95]      Favreau concedes that he gave the accused a truncated version of his rights which did not satisfy these requirements when he arrested the accused for manslaughter. Carambetsos was extremely upset. His memory may be faulty on this point. I am prepared to accept Favreau’s evidence. The accused was brought by the police before a justice of the peace when he was arraigned on second degree murder.  At no time did any police officer advise the accused of his right to counsel in relation to the charge of second degree murder.  These were clear breaches of s. 10(b) of the Charter.

[96]      Carambetsos stated that White attempted to interview him before Fregeau arrived at the police station. Applying the onus that is on the accused, I am unable to find that White did this.

[97]      In the interview at the police station after Fregeau had spoken to Carambetsos, Carambetsos said that he told White about 20 times that he did not wish to tell him what happened. White said that Carambetsos said this about 5 times. Carambetsos said that White said that he could help him, but his lawyer could not. White denied saying this. White did say that his intention was to secure the cooperation of Carambetsos and then to take him to a room where he could obtain a confession from him on videotape. Both agreed that White told Carambetsos that what he said would be off the record. The police may question an accused after he has been advised of his right to counsel. In so doing, however, they must not take away his right to choose as to whether or not to make a statement. In R. v. Hebert,[4] Justice McLaughlin stated the following:

“Charter provisions related to the right to silence of a detained person under s. 7 suggest that the right must be interpreted in a manner which secures to the detained person the right to make a free and meaningful choice as to whether to speak to the authorities or to remain silent. A lesser protection would be inconsistent not only with the implications of the right to counsel and the right against self-incrimination affirmed by the Charter, but with the underlying philosophy and purpose of the procedural guarantees the Charter enshrines.”

 

[98]      She also stated the following:

“First, there is nothing in the rule to prohibit the police from questioning the accused in the absence of counsel after the accused has retained counsel. Presumably, counsel will inform the accused of the right to remain silent. If the police are not posing as undercover officers and the accused chooses to volunteer information, there will be no violation of the Charter. Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence.”

 

[99]      In R. v. Vangent and Green,[5] His Honour Judge Langdon (as he then was), lamented the failure of the police to record interviews with the accused. He stated the following:

“The question that continually arises in the mind of the Court in these situation is: Why in this day and age, in this urban jurisdiction, is the Court required to wrestle unassisted to this extent with such issues?”

“In the case at bar, the Court has taken into account unfavourably to the prosecution both the method of recording the notes that the officers have testified to (to the extent that even that can be determined) and the fact, that the method of recording the interview and what took place in the interview room was primitive and unreliable, and could very easily been improved upon by simple recording devices.”

[100]        In R. v. Moore-McFarlane,[6] Justice Charron speaking for the Ontario Court of Appeal said the following:

“Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect.”

 

[101]        I draw an inference against the Crown concerning the evidence of Constable White of what happened in this interview from his failure to record the interview. I accept the evidence of Mr. Carambetsos. I find that in this interview, Constable White attempted to deny the accused’s right to silence by removing his right to choose whether to make a statement. This constituted a breach of the accused’s rights pursuant to s. 7 of the Charter.

[102]        After Carambetsos was remanded into custody on the charge of second degree murder, Favreau approached him in the secure corridor leading to the cells with the intention of seizing his boots. White questioned him as to whether he was wearing the clothes and boots that he was wearing in the morning when he went to the residence of Maria Campenella. In Re Carey and the Queen,[7] Justice Howden stated the following:

“I further find that the use of a court attendance to elicit evidence is a practice which should not be encouraged and is serious…it is important that the courts and their processes form, and be seen to form, an impartial sanctuary of justice.”

 

[103]        The accused had not been advised of his right to counsel following his being charged with second degree murder.

[104]        I find that the questioning by the police of Carambetsos in these circumstances was a violation of his right to silence and a breach of his rights under s. 7 of the Charter.

[105]        On October 4, after the unsuccessful search at the residence of George Carambetsos, White and Ratchford attended at the jail to interview Carambetsos. This interview was also not videotaped. Notwithstanding the right of the police to question the accused after he has been allowed to confer with a lawyer, I find that the circumstances of this interview also constituted a violation of the accused’s right to remain silent and was a breach of his rights pursuant to s. 7 of the Charter.

 

(iii)       Section 8

 

[106]        The relevant Charter section is as follows:

s. 8       Everyone has the right to be secure against unreasonable search or seizure.

[107]        The police did not search the accused and seize his boots at the time that he was arrested. The police seized the accused’s boots at the court house about 5 hours after his arrest. The Crown concedes that this constituted a breach of the accused’s rights pursuant to s. 8 of the Charter.

(iv)       Section 24(2)

1.      The Test in Collins and Stillman

General Analysis

 

[108]        In considering whether the evidence should be excluded, the court must consider whether the admission of the evidence would affect the fairness of the trial, the seriousness of the breach and the effect on the administration of justice of exclusion of the evidence.  (R. v. Collins)[8] In considering whether the admission of the evidence will affect the fairness of the trial, the judge should classify the evidence as being conscriptive or non-conscriptive. Conscriptive evidence is evidence which the instruments of the state have compelled the accused to create. If they have done so without lawful authority the admission of the evidence will render the trial unfair. The judge then ought to exclude the evidence without considering the other two factors. If the evidence in question is non-conscriptive, the judge must consider the other two factors. There is a subset of conscriptive evidence that is derivative evidence. This is evidence that the police discovered as a result of the accused having been conscripted against himself. It will be excluded unless the Crown can establish on a balance of probabilities that it would have been discovered through an independent source or its discovery was inevitable.

[109]        In R. v. Colarusso,[9] the police obtained samples of the accused’s blood without his consent from a lab technician. This was derivative evidence. They could have obtained them, however, independently by use of a warrant. They were, therefore, admissible. In R. v. Black,[10] the accused told the police that the knife which she had used to stab the victim to death was in a drawer in her kitchen. The statement was inadmissible. The knife was derivative evidence. It was admissible because police would inevitably have obtained a warrant to search the kitchen and found it. The link between the knife and the accused stabbing the victim with it was provided by the accused’s statement, which was inadmissible. However, other evidence established that the accused stabbed the victim (see judgment of Wilson J., p. 21).

[110]        In R. v. Burlingham,[11] the accused told the police that the gun which was the murder weapon, was at the bottom of a river. The police located the gun with the accused’s assistance. They would not have otherwise have discovered it. The accused’s statement and his participation in locating the gun was inadmissible. The gun was derivative evidence. It could not have been discovered independently of the accused and its discovery was not inevitable. The gun was excluded from evidence (R. v. Stillman,[12] para. 67 – 118).

2. Trial Fairness

 

[111]        In the case at bar, Favreau and White seemed to be of the view that they needed a statement from the accused after his arrest that he was wearing the clothes and the boots that he was wearing at the time of the offence in order to have authority to seize them. The police have the power to seize an accused’s clothing incident to arrest if there are reasonable grounds to believe that the clothing will afford evidence of the commission of the offence.

[112]        In Cloutier v. Langlois,[13] the police stopped the complainant for a traffic violation. They discovered a warrant for his committal for outstanding fines. The citizen became abusive. The police arrested him and subjected him to a frisk search. The citizen laid a private information of assault against the police. Justice L’Heureux-Dubé speaking for the Supreme Court of Canada, found that the officers were rightly acquitted. The frisk search was for a valid objective incident to the power of police to arrest, namely, to secure their safety. In a discussion generally of the power of the police to search incident to arrest, she said the following at page 275:

“…the process of arrest must ensure that evidence found on the accused and in his immediate surroundings is preserved. The effectiveness of the system depends in part on the ability of peace officers to collect evidence that can be used in establishing the guilt of a suspect beyond a reasonable doubt. The legitimacy of the justice system would be but a mere illusion if the person arrested were allowed to destroy evidence in his possession at the time of the arrest.”

See also R. v. Caslake[14] para. 19.

[113]        In R. v. Caslake, the police arrested the accused in his car for possession of marijuana for the purpose of trafficking and possession of cocaine. They seized the car. They searched it six hours later and discovered $1,400 in cash and two individual packages containing one-quarter of a gram of cocaine each. The police had the power to search the car for evidence incident to their power to arrest. They searched the car because they believed it was necessary that they create an inventory of the contents of the car. Because they did not have a subjective belief in their authority to search the car, the search was unlawful. Chief Justice Lamer stated the following at page 110-111:

“27  Naturally, the police cannot rely on the fact that, objectively, a legitimate purpose for the search existed when that is not the purpose for which they searched. The Charter requires that agents of the state act in accordance with the Rule of Law. This means that they must not only objectively search within the permissible scope, but that they must turn their mind to this scope before searching. The subjective part of the test forces the police officer to satisfy himself or herself that there is a valid purpose for the search incident to arrest before the search is carried out. This accords with the ultimate purpose of s. 8, which, as Dickson J. stated in Hunter, supra, is to prevent unreasonable searches before they occur.

28  I would note that the six-hour delay in searching the vehicle is not, in and of itself, problematic in the case at bar. There were only two police officers in Gimli, and the regular policing commitments of one of them and the investigating matters undertaken by the other demonstrate that there is a reasonable explanation for the delay in searching the car. However, the delay further reinforces Officer Boyle’s testimony that he was not searching for evidence, but simply conducting an inventory search.

29  The fact that this search was not, in the mind of the searching party, consistent with the proper purposes of search incident to arrest means that it falls outside the scope of this power. As a result, the search cannot be said to have been authorized by the common law rule permitting search incident to arrest.”

 

[114]        The evidence was non-conscriptive. The police acted in good faith. The application of the Collins factors required that the evidence be admitted.

[115]        In R. v. Holtam,[15] the accused was arrested for the murder of his wife and his children. The police seized his clothes and letters from his wife which confirmed an affair. The police released the accused without charging him. DNA analysis of his clothes showed traces of blood of his children. The letters were evidence of a motive. This evidence, with other evidence, led to his subsequent arrest and conviction. The trial judge held that the initial arrest, although it was not followed by a charge, was valid. He also held that the seizure of the clothes was a valid seizure to obtain evidence pursuant to the power of the police to arrest. Hall J.A. for the British Columbia Court of Appeal stated the following at p. 518:

“29  In my view, the police were entitled to seize the items they did from the appellant at the time of his arrest including the clothing, which later furnished DNA evidence and the letters from Shannon Goddard, which were relied upon by the Crown as disclosing a motive for the crimes. It appears to me that the police were then acting legitimately in seeking to discover possible evidence linking the appellant to the crimes. As Lamer C.J.C. pointed out in R. v. Caslake (1998), 121 C.C.C. (3d) 97 (S.C.C.) at p. 108, the three main purposes of a search incident to arrest are: insuring the safety of the police and public, protection of evidence from destruction, and “the discovery of evidence which can be used at the arrestee’s trial”.

30  In R. v. Smellie, Ryan J.A., at p. 23, referred with approval to the judgment of Doherty J. in R. v. Lim (1990), 1 C.R.R. (2d) 136 (Ont. H.C.J.), and noted the following passage from p. 145 of that judgment:

The scene of an arrest may well yield valuable evidence which will assist the police in their investigation and in determining what should be done with the arrested person. This common sense proposition lies at the root of the common law rationale for searches as an incident of arrest.

In my view, in Canada, the justification for a warrantless search as an incident of arrest goes beyond the preservation of evidence from destruction at the hands of the arrested person to include the prompt and effective discovery and preservation of evidence relevant to the guilt or innocence of the arrested person.”

 

[116]        The Crown in its factum dated January 16, 2003 states in par. 20 the following:

i. Section 8 of the Charter

20. The Applicant’s shoes were seized without warrant and the seizure was apparently not authorized by any warrantless search power. Accordingly, the Respondent concedes that the seizure of the Appellant’s footwear constituted a breach of Section 8 of the Charter.

 

[117]        In light of the comments of the Supreme Court of Canada in Caslake (supra), an argument can be made that the police had the authority to seize the accused’s boots at the court house approximately five hours after his arrest, even though they did not do so initially, pursuant to their power to search for evidence incident to arrest. As in Caslake, they initially did not believe that they did at the time of the arrest. They may have acquired the subjective belief that they did after the conversation with asst. Crown attorney Mousseau.

[118]        The authority of the police to seize the boots flows from the power to search for evidence, pursuant to a valid arrest. The police theory was that the accused caused the victim’s death by assaulting him while he was taking him down the stairs and dragging him along the sidewalk. It would be reasonable to believe that if he did so, he would have blood on his hands and his clothes, including his boots. The authority of the police to seize the boots and his clothes was not dependent upon the accused conceding that he was wearing the boots at the time of the incident. Even if he was not wearing the same boots that he was wearing at the time of the incident, it would be reasonable to conclude that blood would be transferred from his hands to another set of boots.

[119]        The boots were not something that the police compelled the accused to either disclose or create.  They existed independent of the Charter breach. I find that the boots are non-conscriptive evidence. Their admission into evidence would not affect the fairness of the trial.

3.         Seriousness of the Breach

 

[120]        Over the next two days the police interviewed people who were in contact with the accused immediately after his attendance at Maria Campenella’s apartment.  He told these witnesses that he had hit the victim and that he had a struggle with him.  He told them that he had blood on his pants as a result and they observed the blood.  The police also interviewed witnesses who saw him dragging a person on Matheson Street at about the same time that Maria Campenella said that he was evicting the intruder.  These witnesses also confirmed Heather Gunn’s evidence that he was throwing something in the direction of the deceased and the dumpster.

[121]        The police attended the autopsy on October 5.  The pathologist identified the cause of death as a severed vertebral artery caused by a blow to the neck.  The location of the blow under the right chin indicated that it was unlikely to have been caused by a fall on the sidewalk.

[122]        There was no direct evidence of the accused striking the victim in the neck under the chin.  There was the accused’s statement to Marc Bissonnette that he had hit the victim.  There was evidence of his placement of the victim around the corner of the building where he might be slow to be found, from which a trier of fact could conclude that the accused believed that he had done something wrong.  In all the circumstances it is my view that this evidence that was developed over the next two days provided further grounds that the accused caused the death of the victim by assaulting him with either his hands or his boots.

[123]        Two days after the offence, there is a strong likelihood that the police would have obtained the boots by seizing them at the jail where Carambetsos was incarcerated pursuant to a search warrant. The boots coming into the possession of the police was inevitable.

[124]        The boots in themselves are of no evidentiary value. To have evidentiary value, there must first be evidence that the accused was wearing them in the early morning hours of October 4, 2000. The accused provided this evidence in his statement to White. The Crown does not seek to introduce the statement. This concession is well founded. In the circumstances, it is almost certainly inadmissible.

[125]        The deceased’s blood on the toe of the boot is strong circumstantial evidence that it was the accused who dragged the victim down the street and that he was wearing these boots in the early morning hours of October 4, 2000. The blood on the toe of the boot serves a purpose that the accused’s statement would otherwise serve.

[126]        The Crown has a witness who will offer an opinion that the markings on the deceased’s neck are consistent with their having been made with the toe of the accused’s boot. Whether this evidence meets the test for the admission of expert evidence in Mohan and other cases will be decided on a voir dire. This is important evidence. The evidentiary basis of this opinion is the boots.

[127]        The breach of the accused’s rights pursuant to sections 7 and 10(b) of the Charter do not relate directly to the seizure of the boots.

4.                  Effect of Exclusion

 

[128]        The structure of the boots on which the Crown’s expert evidence relies is entirely reliable evidence. In R. v. Belnavis,[16] the Supreme Court of Canada quoted with approval in para. 45 the comments of Doherty J.A. in the court below as follows:

“I find Doherty J.A.’s conclusion, at p. 349, that it would be the exclusion, not the inclusion, of the evidence which would cause harm to the administration of justice to be much more persuasive:

In my opinion, the exclusion of the evidence would have negative consequences for the administration of justice. The evidence was essential to the prosecution and was entirely reliable. While the offence charged was not among the most serious crimes in the Criminal Code, the quantity of merchandise involved suggests something well beyond an isolated act of petty theft. The exclusion of reliable evidence essential to the prosecution of a significant criminal charge must, in the long term, have some adverse effect on the administration of justice.”

 


5.                  Conclusion

 

[129]        In my view, the exclusion of the boots from evidence in the circumstances of this case would tend to bring the administration of justice into disrepute. The boots and the evidence of the bloodstain on the boots will be admitted into evidence.

 

10. (B)             The Stay Application

            (i)         The Test for Abuse of Process

[130]        It is the function of the executive to lay and prosecute charges. It is the function of the judiciary to try the charges. From early times the courts have refused to hear cases where the very trying of the case would be so unjust as to be an abuse of the court’s process.

[131]        Chief Justice Dubin of the Ontario Court of Appeal in R. v. Young,[17] traced the history of the doctrine of abuse of process. He described the type of conduct which will constitute an abuse of process as follows at page 31:

“…there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency and to prevent the abuse of a court’s process through oppressive or vexatious proceedings. It is a power, however, of special application which can only be exercised in the clearest of cases.”

 

[132]        This definition of abuse of process has frequently been adopted by appellate courts as set out by Justice L’Hereux-Dubé in R. v. O’Connor[18] at par. 59.

[133]        In R. v. O’Connor, Justice L’Hereux-Dubé, speaking for a unanimous Supreme Court of Canada on the point, states that the doctrine of abuse of power has been subsumed by the Charter. She stated the following at paragraph 70:

“For these reasons, I conclude that the only instances in which there may be a need to maintain any type of distinction between the two regimes will be those instances in which the Charter, for some reason, does not apply yet where the circumstances nevertheless point to an abuse of the court’s process. Because the question is not before us, however, I leave for another day any discussion of when such situations, if they indeed exist, may arise. As a general rule, however, there is no utility in maintaining two distinct approaches to abusive conduct. The distinction is one that only lawyers could possibly find significant. More importantly, maintaining this somewhat artificial dichotomy may, over time, create considerably more confusion than it resolves.”

[134]        The appropriate procedure now is that followed by Mr. Gibson, namely, to seek a finding of the violation of the accused’s rights under the Charter by the police and to seek the remedy of a stay of proceedings under s. 24(1) of the Charter.

[135]        In most cases where there is an abuse of process, the accused’s right to a fair trial will be affected. The conduct of the Crown will offend a specific right guaranteed by the Charter. However, there is a residual category where there will be an abuse of process that does not affect the accused’s right to a fair trial which will be a denial of the accused’s rights under s. 7 of the Charter. In O’Connor, Justice L’Hereux-Dubé described the concept as follows at pages 39-40:

“73  As I have already noted, the common law doctrine of abuse of process has found application in a variety of different circumstances involving state conduct touching upon the integrity of the judicial system and the fairness of the individual accused’s trial. For this reason, I do not think that it is helpful to speak of there being any one particular ‘right against abuse of process’ within the Charter. Depending on the circumstances, different Charter guarantees may be engaged. For instance, where the accused claims that the Crown’s conduct has prejudiced his ability to have a trial within a reasonable time, abuses may be best addressed by reference to s. 11(b) of the Charter, to which the jurisprudence of this court has now established fairly clear guidelines (Morin, supra). Alternatively, the circumstances may indicate an infringement of the accused’s right to a fair trial, embodied in ss. 7 and 11(d) of the Charter. In both of these situations, concern for the individual rights of the accused may be accompanied by concerns about the integrity of the judicial system. In addition, there is a residual category of conduct caught by s. 7 of the Charter. This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.”

[136]        When the conduct of the Crown is so egregious as to constitute an abuse of process, before granting a stay, the court must apply the two tests which were set out by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Tobiass [19] as follows at pages 471-2:

“90  If it appears that the state has conducted a prosecution in a way that renders the proceedings unfair or is otherwise damaging to the integrity of the judicial system, two criteria must be satisfied before a stay will be appropriate.  They are that:

(1)   the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

(2)   no other remedy is reasonably capable of removing that prejudice.

91  The first criterion is critically important. It reflects the fact that a stay of proceedings is a prospective remedy. A stay of proceedings does not redress a wrong that has already been done. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole in the future. See O’Connor, at para. 82. For this reason, the first criterion must be satisfied even in cases involving conduct that falls into the residual category. See O’Connor, at para. 75. The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings. For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society’s sense of justice. Ordinarily, the latter condition will not be met unless the former is as well – society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue. There may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will be offensive. But such cases should be relatively very rare.”

[137]        If the first two tests are met, there is also a third test. In Tobias, the Supreme Court of Canada described it as follows at page 472:

“92  After considering these two requirements, the court may still find it necessary to consider a third factor. As L’Hereux-Dubé J. has written, ‘where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings’: R. v. Conway. We take this statement to mean that there may be instances in which it will be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits. This is not to say, of course, that something akin to an egregious act of misconduct could ever be overtaken by some passing public concern. Rather, it merely recognizes that in certain cases, where it is unclear whether the abuse is sufficient to warrant a stay, a compelling societal interest in having a full hearing could tip the scales in favour of proceeding.”

 

(ii)        Application of the Principles

1. Police deliberately ignored evidence that tended to lead away from the applicant as the perpetrator of the offence to protect the relative of one of the officers

[138]        Mr. Gibson’s position is that it is a viable theory that Danny Favreau robbed Max Kakegamic after Justin Carambetsos deposited him on the sidewalk and in so doing, assaulted him and caused his death. He argues that the police have not adequately investigated this possibility.

[139]        Heather Gunn, in her videotaped statement, said that when she reattended at the corner of Matheson and Third Streets, she said that the body had been moved about one inch. The pockets were pulled out. She suspected a robbery. Constable White said that Lydia Harlos said that Heather Gunn reported to her that Danny Favreau was in the area. Heather Gunn said in her videotaped statement that she saw a man in a white peak cap coming up Matheson Street from the area of the body from her back yard while she was waiting for the police to arrive. Sergeant Favreau said that Heather Gunn in the interview in the police car said that Danny Favreau was the man whom she saw at the middle door. He eliminated Danny Favreau as a suspect after he and White interviewed Maria Campenella. He was satisfied that the man at the middle door was Justin Carambetsos. Heather Gunn must have been mistaken. At the preliminary hearing, Heather Gunn said that she thought that the man in the white peak cap might be Danny Favreau. The statement that Danny Favreau gave Ratchford that he was not in Kenora was not verified by one of two people whom he said could verify it.

[140]        There was scant evidence introduced about Danny Favreau. He is the adopted son of a cousin of Sergeant Favreau. There is evidence that he is small in stature, suffers from Fetal Alcohol Syndrome, is in his twenties, has a criminal record, and acted strangely by standing at the edge of Sergeant Favreau’s lot while Sergeant Favreau was cutting wood. The nature of his criminal record was not introduced.

[141]        Heather Gunn, in her statement on October 4, recorded in White’s notes in the police car, in her videotaped statement, and in her evidence at the preliminary hearing, said nothing which would connect Danny Favreau to the deceased. The only evidence that Heather Gunn said anything that would connect Danny Favreau to the deceased comes from Sergeant Favreau. Favreau said that he eliminated him as a suspect. Favreau can be cross-examined on this issue at trial before the jury.

[142]        In my view, in the evidence before me, there is no air of reality to Danny Favreau being a suspect. Since he said in his interview with the police that he was not in Kenora when the offence took place, he could not be expected to confess to killing Max Kakegamic. Apart from interviewing him, there is no evidence of any other way that the police could investigate his potential involvement.

[143]        Days after the arrest of Justin Carambetsos, the police developed significant evidence implicating him. The witnesses whom they interviewed at Hap’s provided evidence that Justin Carambetsos was seen dragging a man down Matheson Street outside of Maria Campenella’s apartment, throwing what appeared to be shoes at a man lying on the sidewalk, had blood on his pants after he returned from the apartment of Maria Campenella, and admitted to hitting and roughing up a man. The pathologist who conducted the post-mortem on October 5 stated that the cause of death was a blow to the neck which severed the vertebral artery.  The witness Brian Kozak provides direct evidence that Justin Carambetsos deposited Max Kakegamic in a two-foot space between the south wall of Lee’s Satellites and the green electrical box mounted on the cement pad.  An expert purports to be able to identify marks on the deceased’s neck which are consistent with having been caused by a rib structure on the front of Carambetsos’s boots. In these ribs there is a blood stain which is the deceased’s blood. This could lead to an inference that Carambetsos kicked the deceased in the neck, thereby severing the vertebral artery and causing his death. The police have developed a substantial case that Justin Carambetsos assaulted Max Kakegamic, causing his death and hence committed the offence of manslaughter.

[144]        The police have done a thorough investigation. I see no evidence to support this allegation.

2.         The police willfully exaggerated evidence against the applicant due to personal bias to the point of lying about advice received from the Crown and lying to Crown about evidence in their possession

[145]        Richard Cummine provided a memorandum to Mr. Smith on January 8, 2003 of his recollection of the telephone conversation with Constable White on the morning of October 4, 2000. In that memorandum, he said that White told him that “the suspect had admitted to a co-worker that he had ‘roughed up’ the intruder upon removing him from the upstairs apartment.” He testified at trial that White may have told him this in the days following the arrest in meetings that he had with the police. The fact is that a co-worker of Carambetsos at Hap’s who White interviewed told him exactly this. As Mr. Smith pointed out at one stage, if White did lie to Cummine on the morning of October 4 on this point, he is a lucky liar because if it was a lie, it was precisely confirmed a short time thereafter.

[146]        In a memorandum dated October 28, 2002 from Maryanne Mousseau to Trevor Jukes, she said that White had told her prior to bail court that a witness had observed Carambetsos beating or kicking the victim and that Carambetsos had provided inculpatory statements. Maryanne Mousseau first focused her mind on the conversation that she had with Constable White on October 28, 2002. Richard Cummine told her on the morning of October 4, 2000 that his son was romantically involved with Carmel Temple and for that reason, the Kenora Crown’s office could not prosecute the case. She had spoken to other Crown attorneys about what evidence there was against Carambetsos in the following two years. She said that the conversations that she had with Constable White took place about 10:00 a.m., before bail court started. It is clear that White and Favreau did not bring Carambetsos until after 12:00 noon. She clearly is mistaken about this. Given the period of time and the conversation that she has had with others about the evidence, she readily agreed that her recollection of the conversation that she had with Constable White is unreliable.

[147]        There is no reliable evidence on which I can make a finding to support this allegation.

3.         The police improperly influenced the key Crown witness, Heather Gunn

[148]        Lundgren said that the message from dispatch was of three guys beating a guy up. The only possible source of this information if it was said by dispatch was Heather Gunn. He said that his recollection was that Heather Gunn said to him when his attention was concentrated on giving the victim CPR, that she saw some guys beating up the victim. White and Favreau in their interview of Heather Gunn on the morning of October 4, 2000, and White in his videotaped interview with Heather Gunn on October 6, never specifically asked her if she had seen three guys or some guys beating up the victim. However, such a question would have been completely unconnected and inconsistent with what she said that her observations were. The police could not be criticized for failing to put this question to her.

[149]        There is no evidence that the police improperly influenced Heather Gunn. If they could be criticized at all in their treatment of Heather Gunn, it is in not putting various scenarios specifically to her rather than relying on her answers to open-ended questions. However, if they had done that, they might be open to being criticized for suggesting evidence to her. Scenarios favourable to the accused can be put to her in cross-examination at trial.

4.         (i) Police altered notes;

(ii) Police colluded on the creation of statements

(iii) Police destroyed original records of written recollections for the purpose of deceiving the Crown attorney concerning their improper conduct

[150]                          Favreau made changes to his notes that did not add in any significant way to the evidence against Carambetsos. The changes were added to his notebook after a photocopy of his notes had been given to the accused. An alert defense counsel would inevitably find them. He was untruthful in saying under oath that there were no changes to his notes immediately before the changes were pointed out to him. This is inept rather than devious conduct. This will be fertile ground for cross-examination by defense counsel before the jury in challenging Sergeant Favreau’s credibility.

[151]        In response to the memorandum of Jukes dated October 28, Favreau and White provided to Ponton what they said were unsigned original statements. Ponton sent them to Jukes on November 1. Mr. Gibson’s suggestion that there was a conspiracy to hide these statements in my view cannot be sustained on the evidence.

[152]        Ponton should not have read out to all four officers Carambetsos’s affidavit in the meeting on October 10, 2002. He should not have returned the signed original statements to White and Favreau. They should not have changed their responses to Carambetsos’s affidavit. Having received the signed originals back, Favreau should not have destroyed it and White should have preserved it, rather than permitting it to disappear. They should also not have altered the statements, and submitted fresh ones. All of this is contrary to elementary police practice and to common sense.

[153]        Common sense, however, must also prevail in assessing the significance of it. The change was that White was not in the secure area of the police station when Favreau brought Carambetsos into the police station. He could not have been there because White’s notes when compared with the booking-in sheet, showed that White was at the hospital when Carambetsos came into the police station. Police changing statements, even on an inconsequential point, adversely impacts on their credibility. It shows that they are prepared to change their position to achieve consistency, rather than to preserve the truth. However, their doing this on a point of no consequence diminishes its significance. It also must be noted that it was the police following the strong direction of Chief Curtis who disclosed the meeting and the changes to the statements to the Crown attorneys. They immediately disclosed it to the defence and called for an OPP investigation. This does not prejudice the right of the accused to a fair trial. On the contrary, it has provided the defense with a bonanza of evidence on which it can challenge the overall credibility of White and Favreau.

[154]        The police feared that in the words of Chief Curtis in the message that he left on Jukes’ answering machine on October 31, that the Crown was trying to hang the “goat’s horns” on the police. Curtis expanded on this in his telephone conversation with Mitchell on October 31, 2002. The police feared that the Crown attorneys were setting them up to take the blame for a prosecution that was bound to fail. The police say that they did not understand the concept of their investigation being subjected to close scrutiny in a pre-trial motion to determine if they had breached the accused’s Charter rights. The Crown attorneys did not understand that the police did not understand. Greater insight and frankness on both sides at and following the meeting on September 17, 2002 would have been better. It must be noted that the police did not seek a meeting with the Crown to explain the process before the telephone call to Mitchell on October 10 from Ponton at the commencement of the meeting. Mitchell was not available to receive the call. He did return it. His returned call missed Ponton. However, by that time the damage had been done.

[155]        The root cause which led to the changing of the statements in my view is the letter dated July 17, 2001 from Mitchell to Curtis regarding Favreau. In that letter, Mitchell said,

“Sergeant Favreau was largely absent from an act of supervisory directory involvement in the investigation.

This letter is being written to express to you in as strong as terms as possible the need for the Kenora Police Services to engage a competent criminal case manager/lead investigator for all your major crimes occurrences.

Your C.I. management and quality control was deficient in the extreme.”

[156]        This is a letter from the senior Crown attorney in Thunder Bay. Upon receipt of it, Curtis had no alternative other than to remove Favreau from his position as head of criminal investigation in the Kenora Police Service. Favreau retained his rank and his pay, but he was transferred to being in charge of uniformed police officers. In the police world, this involved a major loss of status. Its effect was the constructive dismissal of Favreau. Mitchell must have known that this would have been the effect of his letter. I asked Mitchell and Curtis if they were aware of any official process that a Crown attorney could use to launch a complaint about the conduct of a senior police officer. They said that they were not. This is regrettable. One should be created.

[157]        What Mitchell failed to consider was the effect that his letter would have on the morale of the Kenora Police Service. Surely there was a better way for Mitchell to express his dissatisfaction with the work of Favreau than to write this letter.  Mitchell said that he did not expect Curtis to give a copy of the letter to Favreau. Clearly, Curtis had to give a copy of the letter to Favreau. This was Curtis’s reason for demoting him. Also, clearly Favreau would share this letter with his colleagues. He would warn them about the treatment that they could expect if they did something to incur Mitchell’s wrath. It fostered an atmosphere where they wondered in Jorgensen’s words, who was next.  The contents of this letter quickly became known by the small group of senior police officers in the Kenora Police Service.

[158]        Favreau is a senior police officer. He has devoted his life to police work. The right to a fair hearing is part of the rules of natural justice. Other obvious means that occur to me to address Mitchell’s dissatisfaction with Favreau’s work is a face to face meeting with Favreau, Curtis and perhaps a senior officer of the OPP in which Favreau was given an opportunity to explain his actions. Such a meeting could have been tape recorded.

[159]        I completely agree with the evidence of Chief Curtis that communication on serious issues of disagreement is much better achieved by a face to face meeting than by memorandums and letters. It is only natural that other senior officers of the Kenora Police Service would wonder who was next, as Sergeant Jorgensen put it. These officers may lack the incredible skills and resources that Ms. Mousseau said the OPP has.  However, they are intelligent men who have devoted their lives to public service. This service involves protection of the public and sometimes dangerous work. They are entitled to believe that they would be dealt with in a more sensitive and fair way than Mitchell dealt with Favreau. The police are expected to treat the public fairly. They are entitled to be treated fairly themselves.

[160]        Mitchell’s criticism of Favreau may have been justified. However the means in which he expressed it was an abuse of his power. Its effect was to shatter morale among the senior officers in the Kenora Police Service. It is a natural human instinct to try to protect oneself when threatened. In my view, this is why White and Favreau changed their statements. This is why Ponton in private shredded and replaced Favreau’s original statement. However misguided, they were trying to avoid making embarrassing mistakes. They were trying to protect their careers. They wanted to prevent exposing themselves to being treated in the way in which Favreau was treated.

5.      Police engaged in a pattern of conduct which shows a pervasive disregard for the applicant’s Charter rights

[161]        Favreau’s failure to advise Carambetsos of his right to counsel in the manner that has been required by the Supreme Court of Canada and was readily available to him in the front of his notebook is serious. It is mitigated in the circumstances of this case by the fact that the police did immediately make Carambetsos’s lawyer available to him upon his arrival at the police station.

[162]        White’s violation of Carambetsos’s right to silence at the police station, his questioning of Carambetsos in the secure corridor at provincial court, and the questioning of Carambetsos by White and Ratchford at the jail all violated Carambetsos’s right to silence. These violations are all serious. They are unacceptable police conduct in the era of the Charter. The result of this is that the Crown loses the statements that were adduced. Mr. Smith quite properly did not seek to adduce these statements into evidence. The statements would almost certainly have been excluded, both as being involuntary and on Charter grounds. This is the remedy for these Charter breaches.

[163]        As Mr. Smith pointed out many times, it must also be noted in other areas the police were attempting to proceed properly. Ratchford was preparing an application for a Feeney warrant when Carambetsos was arrested. The police obtained a warrant to search the residence of George Carambetsos.

[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.

[165]        The laying of the charge of second degree murder is another matter. There was no evidence available on the morning of October 4 that would support a charge of second degree murder.  White had no subjective belief that Carambetsos had committed second degree murder, even if he did tell Maryanne Mousseau what she said that he told her in her memorandum. The purported facts would not support a charge of second degree murder. In my view, there was never evidence available that would support a charge of second degree murder. This is a view that is shared by His Honour Judge Fraser, who conducted the preliminary hearing and committed Carambetsos on a charge of manslaughter.  Although the jurisdiction of Justice Platana to substitute a charge of second degree murder after a committal on manslaughter was limited, his decision is consistent with there being a lack of evidence on second degree murder. These are both able and experienced judges who gave careful reasons for their decision. Mr. Smith, in his very thorough and fair submissions, was not prepared to submit that the Crown ever had evidence to support a charge of second degree murder.

[166]        White said that Richard Cummine told him to lay a charge of second degree murder. Richard Cummine is a Crown attorney of thirty years experience. He has been the Crown attorney in Kenora since 1985. He impressed me as an able Crown attorney. He also impressed me as a careful and cautious man. His recollection of the conversation with White was that he said second degree murder or manslaughter was likely the appropriate charge. His advice was to maintain surveillance on Carambetsos and wait until they had a medical opinion of the cause of death before charging him. I accept this. I reject White’s evidence that Cummine told him to lay a charge of second degree murder. This is not to say that White is intentionally being untruthful when he says that Cummine gave him this advice. White, at times in these proceedings, has shown an excess of zeal. In my view, he interpreted Cummine to be saying something different from what he actually said.

[167]        Favreau said that he confirmed with Cummine in a meeting at the police station before he and White took Carambetsos to bail court that the charge was to be second degree murder. This was in the context of Cummine enquiring whether Favreau had taken a statement from Carambetsos following his arrest on manslaughter. Cummine denied that this conversation took place. Favreau may be confusing this meeting with subsequent meetings on the days that followed.

[168]        Further, Favreau’s evidence must always be assessed in the light of Mitchell’s letter. Mitchell cannot humiliate Favreau within the close-knit ranks of the upper echelon of the police community and then expect to get reliable evidence from him. Favreau may well have given this evidence about the meeting at the police station to counter the allegations of Mitchell that he was not in control of the investigation.

[169]        In my view, it was a very serious breach of the accused’s rights for him to be arraigned on the morning of October 4 on a charge of second degree murder. In R. v. Storrey,[20] Justice Cory stated the following:

“The importance of this requirement to citizens of a democracy is self-evident. Yet society also needs protection from crime. This need requires that there be a reasonable balance achieved between the individual’s right to liberty and the need for society to be protected from crime. Thus the police need not establish more than reasonable and probable grounds for an arrest. The vital importance of the requirement that the police have reasonable and probable grounds for making an arrest and the need to limit its scope was well expressed in Dumbell v. Roberts. [1944] 1 All E.R. 326 at p. 329 9C.A.), where in Scott L.J. stated:

‘The power possessed by constables to arrest without warrant, whether at common law for suspicion of felony, or under statutes for suspicion of various misdemeanours, provided always they have reasonable grounds for their suspicion, is a valuable protection to the community; but the power may easily be abused and become a danger to the community instead of a protection. The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited. The police are not called on before acting to have anything like a prima facie case for conviction; but the duty of making such inquiry as the circumstances of the case ought to indicate to a sensible man is, without difficulty, presently practicable, does rest on them; for to shut your eyes to the obvious is not to act reasonably.’”

[170]        Conviction for second degree murder carries a mandatory sentence of life imprisonment. No one in this country should be charged with second degree murder without a very careful assessment by the police of the evidence to ensure that they have reasonable and probable grounds before proceeding with the charge. No Crown attorney should seek to remand an accused into custody on a charge of second degree murder without satisfying herself that the evidence is available to support the charge. This did not happen in this case.

[171]        The issue before me, however, is whether this constitutes an abuse of process and if it does, justifies a stay of the proceedings. Carambetsos was discharged on the charge of second degree murder. In the passage that I have quoted from Tobiass, the Supreme Court of  Canada has emphasized that a stay of proceedings is a prospective remedy. It is usually not to be granted for past misconduct by the state which will not affect the fairness of the trial. There are exceptional cases where “an egregious act of misconduct” by the Crown could prevail over “the interests that society has in having a final decision on the merits.” I am concerned about the laying of a charge of second degree murder without the evidence to support it. I am not, however, convinced that it meets the stringent test for abuse of process, or if it does, it should result in a stay of the proceedings.

 

6.         Conclusion

[172]        It is instructive to compare the facts of this case with the facts of the cases where a stay of proceedings was regarded by the courts as a live issue. In Young, the accused was a lawyer who may have filed a false affidavit under the Land Speculation Tax Act. If a charge was appropriate, it should have been laid under the Act. Long after the limitation period had expired, the Crown laid a charge under the Criminal Code. Chief Justice Dubin of the Ontario Court of Appeal held that to permit the Crown to proceed would abuse the process of the court. In O’Connor, the Crown on multiple occasions had ignored and failed to comply fully with orders of the court to produce documents. In Tobiass, the Department of Immigration was seeking to deport the respondents for having lied about their involvement in the holocaust. The passage of over 50 years resulted in the loss of evidence and the case being conducted in an era when public attitudes about the respondents’ application for entry into Canada had radically changed.  In R. v. Regan[21] the  Crown prosecuted a former provincial premier who was a major public figure in the province for many years for historical sexual assaults. A senior Crown attorney from outside the province recommended against prosecuting the charges in question. The police leaked to the press that they were investigating the accused. This attracted great public interest. The Crown attorney became involved in the investigation of the case by interviewing witnesses. There was an argument that one charge was laid solely for the purpose of forming a basis for calling similar fact evidence of an incident outside the province which could not otherwise be brought before the court. In O’Connor, Tobiass and Regan, the courts divided on whether the charges should be stayed. Ultimately a majority of the Supreme Court of Canada decided that the facts in these three cases fell short of meeting the requirements for a stay.

[173]        The facts in this case in no way prevent the accused from having a fair trial. To the contrary, the blunders by the police give the accused abundant material on which to challenge their credibility. The police have hurt their own case. They have not prejudiced the accused’s case. The facts in this case, in my view, do not begin to meet the test of egregious, oppressive and vexatious conduct by the Crown which would require the court to apply the tests of whether a stay is appropriate.

[174]        If I am wrong on this, the prejudice caused by the conduct of the police will not be “manifested, perpetuated or aggravated through the conduct of the trial.” The appropriate remedy is to permit the accused full rights of cross-examination on most of the issues that the defense raised in these applications before the jury.


[175]        The application of the accused is dismissed.

[176]        My dismissal of the accused’s application should not be regarded as any criticism of Mr. Gibson. It is appropriate that he bring these applications to test the evidence. His conduct through the two Charter applications was very able. The same can be said of Mr. Smith and Mr. Jukes. I am indebted to the three counsel for the very mature way in which they dealt with some very sensitive evidence.

 

 

 

_____________________________

P. B. HAMBLY J.

 

 

Released:     June 27, 2003

 

 

 

 

 

 

Corrected on February           , 2004



[1] R. v. Storrey (1990), 53 C.C.C. (3d) 316 (S.C.C.)

[2] R. v. Censoni, [2001] O.J. No. 5189 (Ont. S.C.J.)

[3] R. v. Feeney (1997), 115 C.C.C. (3d) 129 (S.C.C.)

[4] R. v. Hebert (1990), 57 C.C.C. (3d) 1 (S.C.C.)

[5] R. v. Vangent and Green, (1978), 42 C.C.C. (2d) 313 (O. Pr. Ct.)

[6] R. v. Moore-McFarlane (unreported, released Nov. 30, 2001, (O.C.A.))

[7] R. v. Carey (2001), 154 C.C.C. (3d) 334 (O.C.A.)

[8] R. v. Collins (1987), 33 C.C.C. (3d) 57 9S.C.C.)

[9] R. v. Colarusso (1994), 87 C.C.C. (3d) 193 (S.C.C.)

[10] R. v. Black (1989), 50 C.C.C. (3d) 1 (S.C.C.)

[11] R. v. Burlingham (1995), 97 C.C.C. (3d) 385 (S.C.C.)

[12] R. v. Stillman (1997), 113 C.C.C. (3d) 321 (S.C.C.), par. 67-118

[13] Cloutier v. Langlois (1990), 53 C.C.C. (3d) 257 (S.C.C.)

[14] R. v. Caslake (1998), 121 C.C.C. (3d) 97 (S.C.C.)

[15] R. v. Holtam (2002), 165 C.C.C. (3d) 502

[16] R. v. Belnavis (1997), 118 C.C.C. (3d) 405 (S.C.C.)

[17] R. v. Young (1984), 13 C.C.C. (3d) 1 (O.C.A.)

[18] R. v. O’Connor (1995), 103 C.C.C. (3d) 1 (S.C.C.)

[19] Canada (Minister of Citizenship and Immigration) v. Tobiass (1997) 118 C.C.C. (3d) 443 (S.C.C.)

[20] Supra

[21] R. v. Regan (2002), 161 C.C.C. (3d) 97 (S.C.C.)