Summary: Discussion of scheduling and submissions from Counsel on the various breaches of Byron's rights regarding his interviews with Bui.
Judge: First matter of business is scheduling
- submissions on statement today and tomorrow
- Severability Thursday, begin computers
- Friday off
- Monday ...
- .... [very fast, can't catch]
- Thursday arguments on manor of search
Judge: witnesses on computers are from the Crown?
- Yes, two but they should be short.
Prosecution: This may come back to bite me, but I think the trial will take considerably less than the pretrial motion. I, and I look for conformation from my friend, can't imagine it taking longer than three weeks.
Judge: Is that assuming the agreed statement of fact comes together?
Prosecution: Yes.
Judge: So that's the best case...
Prosecution: We understood that we wouldn't continue till February...
Judge: Why not January?
Prosecution: Mr. Di Luca has an obligation for the first two weeks.
Judge: A obligation that overrules the Superior Court?
Defense: I'm not certain. I'm teaching a course and am contractually obligated... It would be someone problematic.
Judge: Well, I'm not going to be back in February till Family day weekend. What about if we went over March Break? That might be an easier pill for the trial office to swallow. I'll try to avoid Mr. Di Luca's engagement.
Defense: If I am required to be here, I will.
Judge: I appreciate that. I'm trying to avoid declaring a mistrial.
Defense: It is important to appreciate the type of breach of Mr. Sonne's rights.
- 10(b) becomes an issue because there is no clear break between statements...
- Those subsequent statements were obtained in a way that violates ...
- Judge: Do they have to go to all of them?
- This issue is whether there is a clean break between the statements.
- The same goes for the issue of voluntariness.
- The details of Mr. Sonne's detainment is very important to determining if there's a break
- 10(b) was severely breached.
- Without delay means immediately
- "A situation of vulnerability relative to the state is created at the onset of detention. ... It is only logical that the phrase without delay means immediately."
- "With limitations of officer safety and public safety... to do so immediately"
- Mr. Sonne asked for a lawyer immediately. It wasn't until 12 hours later that he was given access to delay.
- There was no justification. Once Mr. Sonne was at the station, and once they began the search...
- Judge: You don't need to go into much detail. Subject to your friends argument, it seems to me that if they had simply verified that it was Mr. Tily...
- Voluntariness:
- "The onus is on the Crown to show voluntariness beyond a reasonable doubt."
- "The Crown bears the responsibility for providing sufficient record"
- intrinsic suspicion if proper recording procedures are not followed
- Two significant interactions with Mr. Sonne that aren't recorded:
- Hill & Garrow
- ??
- Mr. Sonne was in an interview room and cameras and audio were available.
- Judge: Subject to your friends arguments, we shall assume recording was available.
- Scrutiny of Mr. Sonne's ...
- "Statements are inadmissible ... it is unacceptable for a person of authority to offer leniency in return for statements..."
- "Threats or promises may not be directly aimed at the suspect to have a coercive effect... Cases must be considered in relation to the facts... As an example of an unacceptable for a mother to be told that her daughter wouldn't be charged with shop lifting if she confessed to a similar charge... such vital concern..."
- "This becomes improper the inducements, standing or in combination..."
- "The most important consideration, in all cases, is to look for a quid pro quo from investigations, whether in the form of a threat or a promise..."
- Second factor is oppression: "Oppression clearly has the potential to create false ... [false confession to be escape these circumstances or pressure compromises their memory]"
- In this case: National security, security certificate, a legal black hole
- "Operating mind" -- not relevant in this case
- "Other police trickery... This doctrine is a distinct inquiry... While this is an issue of vulnerability but also the integrity of the system... Shock the concious of the community... impersonating clergy, a defense lawyer or injecting truth serum into a diabetic..."
- The area of informant privilege comes up here.
- Regarding confidentiality, there is a case, "It is well established that an assurance, is not inadmissible if the promise is broken... If the person had promised insincerely, intending all the time to reveal it, it would be different."
- This case is far, far removed from the issue of confidentiality. "It is difficult to believe the applicant thought his case was..."
- Another case, person discussing with a doctor, confidentiality but not fear or promise...
- "After that Burns said he didn't want to talk about it. Later he said he wanted to get it off the chess, but wanted promise that he wouldn't tell without permission, so the sheriff did and talked about sheriff's honor... If Burn's had talked about honor to build up security, or if he had been insincere... [appeal judge, original judge found good faith]"
- Court finds implied privilege with crime stoppers, "A court considering this issue must begin from the proposition that informer privilege is an ancient and hallowed tradition... To protect citizen helping with... So important, once found, court's are not entitled to balance it against benefits... Not at Judge decision... Privilege belongs to the Crown, but the Crown can not waive it without the permission of the informant..." It is not just a protection of individuals... It must be followed in such a way that it will not discourage the public...
- We submit that there is no difference between a potential informant and an informant. This is analogous to the fact that a Lawyer is still legally a lawyer before they are retained when they first discuss the case. Otherwise they couldn't safely find a lawyer. In the same way, privilege must apply before someone becomes an informant or they can't safely consider being one.
- "Connected as it is to the ... law.. it is broad in scope."
- It applies to someone on the stand: no one can be compelled to answer whether they are an informant, whether they are or aren't. Otherwise those that are could be ferreted out.
- "It also sends a signal to informants that their identity will be protected."
- Case dealing with ... "Section 503 may be one of the most important procedural sections of the criminal code... A trial can be interrupted to bring someone within a ..."
- Not only was it breach of 503, but unlawful detention, after 24 hours.
- Judge: What is the remedy for that?
- It is an arbitrary detention, intrinsically. So it's a breach of section 9. Then we're in to 24(2).
- Judge: There still has to be...
- Not only is Mr. Sonne unlawfully detained, but Detective Bui is bringing Mr. Sonne in for interrogation.
- When the reason for detention changes, someone should be given 10(b) rights and access to counsel. Bui knew that they were past the 24 hour period.
- 24 hours is the maximum, if they can get someone before the courts before, they should.
- He was arrested at 12:10. The first 12 hours seem to be wasted. Nothing is done to advance Mr. Sonne's access to counsel... Steps that could have been taken earlier and they weren't.
(break)
- The court must look very closely at all the facts dealing with Mr. Sonne's arrest and detention...
- None of the Crown's witnesses report to have been the person calling shots around the trial.
- Mr. Sonne is clearly unaware of the facts underlying his arrest when arrested. Doens't seem to have known about the no call order.
- Mandanian made decision around the no calls in consultation. He says, and gives as his final answer, that it was because of explosives.
- But that can't be the case because they didn't know about chemicals.
- I understand that if there are, for example, multiple coordinated arrests, can be a reason to delay right to counsel. But it must be done on case specific facts, but there are, I submit, none in this case. Certainly no reason once the premises are secured.
- We haven't heard from Supermarang to provide reasons...
- Mr. Sonne remains in interview room for 11.5 hours
- Mr. Sonne considered as a potential source. Part of the job of Garrow is to make it worth while...
- Before Bui, who was there from the investigative & enforcement side.
- First 4 visits are on the hour, almost exactly, like clockwork. Sometimes together, sometimes apart.
- Hill tells Sonne that he doesn't want to talk about the charges Mr. Sonne is facing. Mr. Sonne didn't know what charges he is facing. Mr. Sonne would reasonably be able to assume that the officers would draw that line... but Hill & Garrow didn't either.
- Going in with no knowledge of knowledge is, at the very least, reckless.
- The looked at the pictures on line.
- But how could they have linked Mr. Sonne with the torontogoat blog, etc, without knowing about Mr. Sonne's case?
- Contact with Officer French.
- They seem to be running the show, and some things indicate they have knowledge of what's going on. And yet they say they don't know.
- Judge: Officer's Hill & Garrow may have thought Mr. Sonne knew where to draw the line.
- [admissibility of evidence from video of Mr. Sonne in this context; reliability]
- pg4 of interview: Bui shows Flickr page, and Mr. Sonne immediately comes out with a Hill & Garrow asked him about it and told him how it looked.
- There seems to be a fog over these 12 hours. Some things are recalled, others forgotten.
- They say that they got onto these topics from asking Mr. Sonne about what he likes to make...
- This seems odd, given what he says he builds a "microwave pannel"...
- There's an odd feature to the topic covered. Somehow, without knowing the subject matter, they hit on most of the evidence in the ITO.
- ITO suggested reasonable grounds for a conspiracy.
- If there is a dual-part investigation, the police can't hold back one...
- An are of interest to Hill & Garrow. And they accidentally stumble upon all the high points.
- Judge: I'm troubled by Flickr references, etc....
- Judge: You want, if I see where you are going, that this was all a ruse.
- Either, their reported interest is a ruse, or the arrest of Mr. Sonne is a pretext to be used for intelligence purposes.
- No surprise here for Crown...
- This was all very clear in their testimony.
- No new evidence.
- Judge: This is such a serious allegation to make against the police... You're saying that not only that they got into this topic, but you're attacking their motive.
- Defense: It's a formality at this point. They made their position clear.
- Judge: There's a real fairness issue.
- Defense: All I need is for you to have doubt...