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Byron Trial Notes, Day 10 (Week 3)

Summary: Counsel continues crossexamining Detective-Sargent Bui, moving on to the recorded interviews. Topics include various violations of Byron's rights, including denying counsel, detaining Byron beyond 24 hours without putting him before a Justice of the Peace, leveraging his wife to try and make him give a guilty confession (a "moral appeal") and insinuating Byron might fall into a legal black hole.


(Judge hasn't finished her reasons. Should be done for Tuesday or maybe Wednesday.)

(Bui won't be here until 12)

(Judge: I want to finish pretrial points...)

(Adjourn till 12)

  • What information did you have before meeting Mr. Sonne? Some indication that Hill & Garrow had spoken to Mr. Sonne without counsel?
    • Yes.
  • What information before and after?
    • Before, aware that Garrow and Hill had some contact before counsel.
    • After, found out the details of their interaction.
    • I knew that we were searching the cottages, but I didn't know how we attained that information.
  • Judge: Before and after Bui went in to give Byron his rights?
    • Yes.
  • From Hill via Franks, you get information about Hill and Garrow being there to debrief Mr. Sonne, having an interview...
    • Yes. 12:34 is the time they were sent over.
  • Intelligence related interview?
    • Yes.
  • Told that Mr. Sonne said to Hill that he was not involved in any G20 groups, though exposed.
    • Yes.
  • You knew that there was a second interview regarding suspicious chemicals?
    • Yes.
  • Did you learn about Mr. Sonne being approached to be a confidential informant?
    • No.
  • So when you say an "intel interview" in your notes, that has no relation to a confidential informant?
    • I know where they work, but that would be privileged information...
  • Objection: ...
  • Would it be important to you if Mr. Sonne was a CI?
    • It would be relevant if Mr. Sonne was extended privilege...
  • It would be important to know if someone was a CI because it would be an issue that should be approached with confidence?
    • It would be useful, but not necessary.
  • (Judge: Please differentiate between CI and potential CI?)
  • If you knew that someone had been a CI prior to your interview, I suggest that it would be important so that you didn't accidentally ask questions covered by privilege.
    • Useful, but not necessary...
  • If issues relating to privilege came up, you'd need to edit your recording to edit that out...
    • It might be necessary to go back...
    • I wouldn't approach those issues because that's not what I'm ...
  • If in the course of an investigative interview you found out that someone was a CI...
    • This has happened, I continue and later contact source handling.
  • (Objection: Relevance?)
  • Photos from walkthrough understood to have been taken on June 22, or at least before the execution of the June 23 search warrant?
    • Yes
  • Mr. Sonne was brought in. He didn't ask to speak to you? He wasn't asked if he would like to speak to you?
    • Yes.
  • Do you have a transcript in front of you?
    • Yes.
  • Didn't repeat his rights? Didn't go through charges?
    • No. Charges mentioned, but list not put in front of him. During the interview goes through the synopsis...
  • Mr. Sonne doesn't really remember you?
    • No.
  • Didn't read cautions?
    • No.
  • Showed flickr page?
    • Yes.
  • Mr. Sonne's immediate response was to refer back to interview with Hill & Garrow?
    • Yes.
  • "Oh I understand, I mean like, there are two people... two detectives from the intelligence unit that made it quite clear, exactly why, and they say no matter how lawful all of these things might be individually, put it together and it looks like something nasty. So they drilled that into me again, and again, and again. So... I don't think that... I can't see what new would be brought to that part of the conversation."
  • Was that new to you, or were you previously aware that they'd been discussed?
    • New to me.
  • Were you aware that Hill & Garrow may have talked to Mr. Sonne about that?
    • I didn't know it to be fact.
  • Objection: Hill & Garrow weren't asked about this. They had a right to be asked.
  • Defense lists examples of being asked and them refusing to answer.
  • Defense relevant besides this...
  • Defense: My friend had notice and could have asked Hill...
  • Prosecution: It was not put to them specifically...
  • Judge: My recollection is that he wasn't asked, but there is clear relevance besides that.
  • Mr. Sonne brings up reference to previous interview... You did nothing to disabuse Mr. Sonne, to suggest to him that the previous conversation should have no influence on his present conversation?
    • I am aware of wear Hill & Garrow ... I didn't want to approach that topic, in case he'd been approached as a CI.
  • Do you agree that you could have handled this by giving the secondary caution?
    • I was convinced Mr. Sonne understood the secondary caution.
  • Knock at the door. First one is ignored, later, second is answered.
    • Yes.
  • Told that counsel is here to speak to Mr. Sonne. You say he is...
    • Unavailable or something like that.
  • Mr. Sonne asked about his right to see Counsel immediately.
    • You bring up that he had a chance to speak to his lawyers last night, though not previously.
  • "Well... I don't know what I can say that will help you get to the bottom of it. I thought I've said everything already, that seems reasonable." Did you think this was a reference to his earlier conversation with Hill and Garrow?
    • That's one of the interpretations...
  • Was that what you understood at the time.
    • I knew they had approached him but not what their approach is.
  • I'm asking what you understood at the time.
    • I think, in part, he was referring to that conversation.
  • No effort at that point to give the secondary conversation on your part?
    • Yes.
  • "But how do I know that you're not just going to use this to build up a case against me? Stick me in detention, you know, in jail for a year or two? I'm not sure that I'm doing anything here that's helping me. Other than... I know it's helping you." You don't express that that is exactly what you're doing?
    • Yes, that was the objection of my interview, it was information gathering.
  • You didn't tell him the primary caution?
    • He understood.
  • Do you think the comment indicated a lack of understanding of the primary caution?
    • No, he understood.
  • Interview based on the results of the search of his house?
    • yes.
  • Page 13, did you not post on your Flickr page that you had noticed a decrease in police communication?
    • Yes...
  • "I can see how that is cause for concern. I do sir. But you have to understand a series of innocuous legal things... you're making a pie out of... a Byron eat shit pie out of stuff that is entirely legal. You guys are asking me the same questions fifteen different times... two or three groups of people... I don't know how.... I've made sure that I had my wife sign this... I couldn't get away with that because I wanted to be accurate."
    • (Defense repeats "eat-shit" pie several times)
  • Relating to previous conversation?
    • Yes.
  • Bring up Kristen Peterson and express concern?
    • Yes.
  • First time you brought her in?
    • Yes.
  • Did you believe, at the time, that you have grounds to arrest Ms. Peterson?
    • Yes.
  • Mr. Sonne responds, several times, with the term "you guys"...
    • Yes.
  • Goes through examples.
    • All yes.
  • Reference to previous officers?
    • That's possible.
  • Was that what you thought at the time?
    • The police are often thought of as a single entity and one person is just the face.
  • But you thought it a possibility at the time?
    • Yes.
  • And no secondary caution?
    • Yes.
  • Between the two interviews, Ms. Peterson was arrested and charged with possessing an explosive substance and weapons dangerous?
    • yes.
  • Before she was arrested, did the comment about "blowing up the house" come to your attention?
    • No.

(Lunch, return at 2pm)

  • I'd like to turn to the interview on June 26.
  • Would you agree that it took place in the same, in the same room, though the angle is different?
    • Yes.
  • And with you, the same interview?
    • Yes.
  • Gave instructions for Mr. Sonne to be brought there..
    • Yes.
  • He didn't ask to speak?
    • Yes.
  • Mr. Sonne said that he was "not good" ... because "you have my wife".
    • Yes.
  • Asked Mr. Sonne whether he understood his rights? Didn't repeat rights or cautions?
    • Yes. Cautions are rolled up in his rights.
  • That's your understanding, but the word you was rights, not cations....
    • I repeat the first caution later in the interview.
  • "I wanted to tell you personally that we arrested Kristen and that she is here ..."
    • Yes.
  • "It's important that we talk about this because it is going to impact your family..." You are trying to convey that, based on his conduct, there is going to be consequences for his family.
    • I'm trying...
  • You bring up the idea of a 'reasonable explanation'?
    • Yes.
  • You talked a lot about how Byron said you were trying to trip him up?
    • Yes.
  • And you were referring to Byron asking about how "did he know you wouldn't use it against him"
    • Yes.
  • And you discuss Kristen...
    • Yes.
  • Open source can go into the "deep web". You're trying to convey that they can go to that the rest of us can't?
    • No.
  • You agree the comment was readily available?
    • I'm trying to convey...
  • It's readily available. But they could just click the comments...
    • I don't understand how you navigate Twitter and blogs. It came from an open source.
  • "Blow up the house" and you say that it is from February, but you don't mention the year, and it was from more than an a year prior?
    • Yes.
  • This is going to effect Ms. Peterson?
    • Yes.
  • Talk about conversation with Ms. Peterson's lawyer, fashioning a bail plan?
    • Yes.
  • 'Got this report this morning... This comment causes a problem' You mean a problem with the bail plan?
    • A problem for her.
  • I'm going to suggest that you made a clear link between Mr. Sonne providing you with a reasonable explanation and Ms. Peterson getting bail.
    • Not really...
  • You bring them up together many times?
    • Yes.
  • And he says, "It was a harmless joke... Sir, I'll talk"
  • Judge: I have penned in 'won't'...
  • Prosecution: It's hard to tell.
  • (5 minute break for them to check. At 12:29 in movie. )
  • Defense: We agree that it is muddled and is ultimately for your honor to decide.
  • You discuss how you're a criminal investigator ... Mr. Sonne says, please forgive me if I vomit. You ask if he needs medical attention and he says, just feeling uneasy and has anxiety issues.
    • I point to 'national security' and I wasn't sure if it was theatrics or him genuinely being sick so I asked if he needed medical attention.
  • So the concept of national security is brought up then.
  • This is the first mention of anxiety issues. You didn't suggest you take a break?
    • Yes, no.
  • Intelligence officers...
    • ...
  • You offer a meal and his response is that he doesn't think he could eat until later.
    • Yes.
  • You say the intelligence operators work separately from you.
    • yes.
  • You don't have any intelligence backgrounds.
    • Yes.
  • The public seems to not be particularly happy that they received special powers? Do you believe that Mr. Sonne might have been concerned his usual rights have been suspended?
    • No, he was referring to the public work acts.
  • Mr. Sonne acts about the FLQ act in Quebec... He might have been concerned that his regular rights were suspended.
    • No, I still believe he was referring to the public work acts.
  • Spoke about intelligence officers asking about the warrant.
  • Concern about the disruption of telecommunications.
  • Called in after they found chemicals.
  • Toronto Police doesn't have a terrorism unit. First time it is brought up? Mr. Sonne doesn't bring it up?
    • Yes.
  • Mr. Sonne talks about freezing. Seems non sequitor. He might have been cold?
    • Yes.
  • "I'm a bit a bit of a fish out of the water... I'm getting people dropping stuff like this, dropping off stuff with words like this. You pointed at secret on report cover?
    • Yes...
  • You're suggesting that Mr. Sonne might might be the interest of something much greater than your investigation?
    • No... a bit theatrical.
  • OK, but I'm suggesting than the reason you did that was to suggest Mr. Sonne was facing something bigger than teh charges he's facing.
    • No.
  • "They were going to do open source, through the deep web -- I've never even heard of deep web before" I'm going to suggest that you were again tieing this into something much deeper, the secrets and national security side of things.
    • no.
  • "They're saying... the people who like to type out that word, right there [points to secret]"
    • Yep. pointed to secret.
  • Bring up Ms. Peterson. You say that they share computers.
    • yes.
  • What you're trying to convey is that his wife may bear some responsibility for the content of his computer.
    • Your honor, the strategy of this interview was a moral appeal...
  • Here's one of the most explosive things, that is going to cause for ...
  • Evidence that may be exculpatory for her and inculpatory for him.
  • "What I'm suggesting is that your strategy goes beyond the moral appeal, and that you're actually offering an exchange. If Mr. Sonne provides you with a 'reasonable explanation' his wife will get bail."
    • I do not confess to that. ??
  • Pirate bay comment... tieing the legitimate reason to Peterson's bail...
    • No.
  • Moral appeal when 'Heartbreaking when ...'
    • Yes.
  • If me and my wife were both in jail, I'd want the court to take compassion on one of us, probably her...
  • "I need an explanation for this, before we can even consider fashioning a bail." That's bail for Ms. Peterson?
    • Yes.
  • And that wasn't an exchange"
    • No. I wasn't in a position to offer that.
  • [Slightly different repeat of the above version]
  • On Friday, you said something to extent of not relating "forcing someone to contact a lawyer" to the right to counsel. But you said in the interview that the only time you force someone to ...
  • I can't say anything until I speak to my lawyer. He says that, right?
    • Right.
  • You say that you are his liaison to the crown?
    • Yes.
  • You're suggesting that you're there to put in a good word with Crown.
    • No.
  • You say that your his lawyers' liaison to the crown?
    • Yes.
  • I'm saying that your saying that because your able to put in a good word in his wife's bail.
    • No promises.
  • You mention that his wife is getting a bail review, but not him.
    • Yes.
  • And he's surprised?
    • Yes.
  • And he mentions that he hasn't had contact with his lawyers since the previous night?
    • Yes.
  • Comments are on the blog...
  • "I think she's going to look to her husband for some fucking help here ..." I'd suggest that you're creating, through your comments, a suggesting that a reasonable explanation will result in his wife getting bail?
    • A heightened version of the moral appeal.
  • He's already said twice that it was a joke.
    • Yes.
  • He asks what reason you'd accept. You understood that he's turning to ask you for what he should say.
    • That might be an exaggeration.
  • What is the innocent explanation for her sake, not to you.
    • How, if I tell you something, can you promise, if you can't.
  • "No, but I'll give you my opinion... today is the chance for her. " You're saying that this is the chance for him to help her.
    • A chance...
  • "There are going to be people suggesting you were in a very nefarious plot... Don't let her get roped into that" -- you're suggesting the RCMP and national security people... You're suggesting a more sinister plot than what Mr. Sonne is charged with.
    • I don't think it's fair to put it to me in that way, without the totality of our exchange.
  • Ask if Mr. Sonne is engaged with the liberation front, etc. That will help you because these other people won't be able to suggest that you were part of a long term sinister plot? You're suggesting RCMP national security?
    • Amongst others.
  • Similar exchange to above...
  • "Throw himself at the mercy of the court" "responsibility on his shoulders" ... "It was me, all me..." "Sometimes people need to man up.." -- In addition to being a moral appeal, I'm going to suggest that you are telling Mr. Sonne that he should incriminate himself and that would help his wife.
    • I didn't have the authority to do that.
  • Regardless of whether you could, I'm saying that that is what you are suggesting.
    • No. I'm providing a scenario.
  • '..' help the wife.
  • If this ... Mr. Sonne says that he is sure you'd do the right thing, but not the counsel?
    • Yes.
  • And you tell him that you're the guy that is leading the investigation of the cars.
    • yes.
  • And you outline two scenarios where you help or hurt him. Could you read ... to me?
  • Would you rather hear me say [ he was going to set off bomb ] [wasn't going to set off bomb] One of those is a threat, or favor
    • No. Just outlining two possible scenarios.
  • Mr. Sonne says you aren't just going to lie to spite him...
  • Mr. Sonne makes a comment about a security certificate... Did that sound out of place, with the discussion of RCMP...
    • Yes.
  • Did you know if security certificates could be applied to citizens?
    • Not at the time.
  • "I'll fight tooth and nail to keep you in normal facilities where you are kept in normal with ..." That's a promise.
    • It's from me as a man.
  • He expressed fear and you were trying to allay that?
    • Yes.
  • And you mention other people... You're suggesting he might end up on a security certificate?
    • He might be watched, but not that.
  • Public works, Mr. Sonne complements the brilliance of that strategy.
  • "Time for a guilty plea, lets' put that to bed"
  • ... Her charges could be withdrawn, but it requires a solid story from all of us
    • Yes.
  • I'm going to suggest that you're saying that if Ms. Peterson could get released if he presented a story that you agreed with.
    • That's the strategy of this interview: a moral appeal.
  • Was Byron trying to push the security apparatus. Did you believe that was a possibility?
    • Yes.
  • So you're putting forward an explanation? *

(Break, 30min)

  • 'I don't really give that much of a shit about the G20' and you say that 'it looks like you were testing the system' and Mr. Sonne says that he'd 'have to talk to his lawyer about that'.
    • Yes.
  • Manning up or letting the trial play out...
  • Highlighting that Kristen is charged with explosives.
    • "I'm looking for the truth!"
  • "We're looking at fashioning a bail... but I don't know that it is possible with that open source comment" -- you're taking another shot ...
    • I'm taking another short from the
  • Talk about "Ms. Peterson's lawyer trying to insulate her from ... you need to come up with a strategy ..."
  • Communicate a preference?
    • I do use the word preference.
  • And your preference is that Ms. Peterson be released?
    • Yes.
  • And Mr. Sonne pleads "Anything you can do to help my wife, she's everything to me" That gave you some satisfaction, that your approach was working.
    • yes.
  • And you talk aobut where he was buying things, tell you about it. Why...
    • Yes.
  • Turn your mind towards evidence that's going to come up and help your wife... More of your moral appeal?
    • Yes.
  • Mr. Sonne makes another plea. "I couldn't live with myself if she gets shut away in some hole"
    • Yes.
  • And you continue, "just turn your mind to us, figure out if she knew what..."
    • Yes.
  • Those are all my questions.

(Judge: Any other evidence? Defense & Counsel: No.)

(Discussion of scheduling. Judge: I can't accept counsel running the scheduling.)

Defense: 5 points:

  • Breach of 10(b) -- our onus under the balance of evidence
  • voluntariness -- onus on Crown
  • confidentiality issue -- this would fall as a police trick, and a serious breach of privilege.
    • Jude: What is the standard?
    • Defense: I'd say that onus is on the Crown to show that there is no involuntary
  • Non compliance with 501(3)(o) -- bringing a person before a justice within 24 hours at the latest.
    • On its face, a clear breach of section 9 of the charter by detention
  • Tainting
    • Issues relating between the second caution.
    • Continues till the June 26 statement.
    • Quid pro quo with Bui
    • Issue of oppression with Bui suggesting Mr. Sonne could be swallowed into a legal black whole.

(Judge: Very substantial issues. Will take time. Written submissions...)