



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pearson, 2017 ONCA 389

DATE: 20170516

DOCKET: C55787 and C55788

Watt, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Damion Dicketta Pearson

Appellant

Mark Halfyard and Breana Vandebeek for the appellant

Benita Wassenaar and Howard Leibovich for the respondent

Heard: March 30, 2017

On appeal from the convictions entered on June 4, 2011
    and December 6, 2011 by Justice Bruce A. Glass of the Superior Court of Justice,
    sitting with a jury.

Pardu J.A.:

[1]

The appellant was convicted by two different
    juries of the two separate murders of Khristian Ottley and Jeffrey Warne, which
    were committed two weeks apart in January 2008. Although the murder trials were
    severed, the trial judge made certain pre-trial rulings related to the
    admissibility of evidence that applied to both proceedings.

[2]

The appellant submits that the trial judge made
    the following errors in his pre-trial rulings:

1.

The
    appellants statements to police on April 15 and 16, 2008 should not have been
    admitted because they were not voluntarily made.

2.

Shotgun
    shells found in the appellants car during a traffic stop on January 15, 2008 should
    have been excluded because the search of the appellants car was not incidental
    to his arrest for impaired driving.

3.

The
    appellants statement to the police on February 19, 2008, made while he was
    sitting in the back seat of a police car after police again found shotgun
    shells in his car during a traffic stop, should have been excluded because it
    was obtained in a manner the breached the appellants right to counsel under s.
    10(b) of the
Canadian Charter of Rights and Freedoms
.

4.

Bad character
    evidence that the appellant showed a shotgun to two different friends in
    December 2007, possessed shotgun shells and had plans to rob a drug dealer
    should have been excluded because the probative value of the evidence was
    outweighed by its prejudicial effect.

A.

Khristian Ottley

[3]

The position of the Crown at trial was that the
    appellant and three companions  A., James and Campbell  drove to a secluded
    area near Pickering, Ontario where Ottley met them, driving his own car.
    According to the Crown, the appellant got in the back seat of Ottleys car, fired
    a shotgun through the seat and killed Ottley. This was supported by the
    appellants and Ottleys cell phone records and by the evidence of A. and
    James. The motive for the shooting was a disrespectful remark that Ottley made
    about a nickname for the appellant. The appellant told police he was present at
    the time of the killing but that someone named Crisis was the killer. At
    trial, he said this was untrue and that A. was the killer.

B.

Jeffrey Warne

[4]

Warne was a known drug dealer in Pickering. The
    Crown alleged that the appellant shot Warne or directed the shooting when he
    and two others went to Warnes house to commit a robbery. The appellant
    admitted to police and at trial that he had been casing out Warnes house with
    Campbell with a view to committing the robbery. He told police that he planned
    to commit the robbery and that he broke into the house and saw the shooting. At
    trial, he said he was outside in the car, that he did not go into the house and
    that Campbell and two other males committed the offence. The appellant had
    knowledge that would have only been available to someone who saw or
    participated in the shooting. Warne had complained to police that he thought
    someone was casing his residence and had recorded the licence plate number
    belonging to the appellants car as the suspect vehicle.

C.

The statements of April 15 and 16, 2007

(1)

Factual Background

[5]

During their investigations, police began to uncover
    evidence leading them to suspect that the appellant might be connected to the killings
    of both Ottley and Warne. Cell phone records showed that the appellant was the
    last person to speak to Ottley before he was killed. Warne complained to police
    about the appellants car loitering near his home. Police knew the appellant
    had been found with shotgun shells close in time to the dates of the killings. The
    Centre of Forensic Sciences said the shotgun shells seized from the appellant
    were similar to those used in the Ottley and Warne killings.

[6]

On March 20, 2008, Det. Haight went to the
    appellants home. After learning that the appellant was not there, he left a
    business card asking the appellant to call him. He also spoke to the
    appellants lawyer and indicated that the appellants name had come up in an investigation,
    that the appellant was a friend of Ottley and that police wanted to talk to the
    appellant. The appellant called Haight and left a voicemail message for him.

[7]

On March 24, 2008, Haight met with the appellant
    and drove him to the police station for a recorded interview. The appellant was
    told he did not have to speak to police and that he was neither detained nor
    charged. The appellant told police he had spoken to his lawyer before coming in
    for the interview. He told police he did not kill Warne or Ottley, that he did
    not see Ottley on the night Ottley was killed and that he did not know who
    Warne was or that Warne was killed. He was prepared to submit to a polygraph
    test.

[8]

On April 10, 2008 the appellant called the police.
    He was upset that the police were interviewing his family and friends. He wanted
    to take the polygraph test. He told the police to leave a telephone message
    with his lawyer to advise him of the date and time of the polygraph
    examination. On April 14, 2008, Haight left a message with the lawyer advising
    that the test was scheduled for the next morning.

[9]

On April 15, 2008, the appellant was brought to
    the police station for the polygraph test. In reasons reported at 2011 ONSC
    1485, the trial judge described the unfolding of the events at paras. 34-37:

On April 15, 2008, Detective Haight and Detective Airey picked
    up Mr. Pearson to take him to the Pickering police office for Durham Regional
    Police.
Prior to the polygraph
    examination, Detective Nadeau explained the process and confirmed that Mr. Pearson
    did not have to speak with the police, that he could leave whenever he wished,
    and that the examination was being done with respect to the Jeff Warne
    homicide. Detective Nadeau told Mr. Pearson that the results of a polygraph
    examination could not be used in court, but he explained that comments made by
    Mr. Pearson during the polygraph examination could be used in court. He asked
    Mr. Pearson to explain in his own words what he understood this to mean. By his
    answers, Mr. Pearson understood that he could leave, that he could refuse to
    participate in the questions and answers, and that any comments he made could
    be used in court. Detective Nadeau asked if the defendant wanted to speak to a
    lawyer before starting. He did not want to do so. Detective Nadeau also told
    the defendant that if it were determined that he killed Jeff Warne, he would be
    charged with murder. The accused man understood this.

After reviewing the questions that were to be used for the
    polygraph examination, the test was performed. Detective Nadeau left the room
    to complete his analysis of the test answers and returned to advise Mr. Pearson
    that the result indicated that he was being deceptive.

Detective Nadeau continued to ask questions after reporting the
    results of the polygraph examination. The questions expanded to the Khristian
    Ottley homicide as well.

Then, Detective Haight entered the room and asked questions
    until Mr. Pearson stated that he wanted to talk with his lawyer. He provided
    the name of George Aristos, who had represented him in Youth Court. A message
    was left for Mr. Aristos to call the police station in order that he might talk
    with Damion Pearson. When no call came, Mr. Pearson asked that Mr. Erskine be
    called. A message was left for Mr. Erskine, who did call the police station.
    Mr. Pearson spoke privately with Mr. Erskine. After speaking with his lawyer,
    Mr. Pearson said that he did not want to talk any more.

[10]

During the course of the
    April 15 interview and polygraph test, the appellant admitted to being present
    at the killings of both Ottley and Warne. He said that he was standing outside
    the car in which Ottley was sitting with a passenger in the back seat, heard
    the sound of the gunshot and saw Ottleys body slumped on the steering wheel.
    He said that a person named Crisis was the shooter. The appellant also gave
    several inconsistent statements about his involvement in the Warne shooting. At
    first, he said that he did not know Warne. But he eventually said that he was
    at the scene of the shooting with a number of other assailants who intended to
    rob Warne and saw the shooting occur. He did not know that they had guns.

[11]

The April 15 interview ended
    when the appellant asked to speak to a lawyer, received legal advice and
    refused to speak with police any longer. He maintained that position the next
    morning on April 16, 2008.

[12]

The trial judge concluded at
    para. 56 of his reasons that the appellants statements about the Ottley and
    Warne killings had been voluntarily made:

The Crown has proven beyond a reasonable doubt that the
    statements were made voluntarily, that the defendant was not deprived of his
    operating mind, and that his right to silence was not overborne by the police
    during their questioning. Mr. Pearson wanted to make the statements. He
    obviously wanted to get the police off of his back, as he said. He was prepared
    to speak to the police to attempt to do so.

[13]

The trial judge addressed the
    appellants argument that, because police suspected the appellant of the
    murder, had reasonable grounds to believe he had committed the offence and failed
    to caution him again, his statement was made involuntarily. The trial judge
    cited
R. v. Esposito
(1985),
53 O.R.
    (2d) 356 (C.A.)
, for the proposition that the absence of a caution is
    not decisive, but may be a factor in assessing whether or not a statement was
    voluntarily made. He indicated at para. 48 of his reasons that had the
    appellant become a suspect, with the police intending to charge him with
    murder, his jeopardy would have changed dramatically and he would be entitled
    to be advised of that change along with a caution and advice of
Charter
rights to speak with a lawyer. That development did not arise with respect to
    Mr. Pearson.

(2)

Analysis

[14]

Deference is owed a trial
    judges determination of the voluntariness of a statement, provided that the
    correct test is applied and all relevant circumstances are considered:
R.
    v. Spencer
, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 170.

[15]

Deschamps J. summarized the
    common law confessions rule at para. 12 in
Spencer
:

In
Oickle
, the Court recognized that there are several
    factors to consider in determining whether there is a reasonable doubt as to
    the voluntariness of a statement made to a person in authority, including the
    making of threats or promises, oppression, the operating mind doctrine and
    police trickery. Threats or promises, oppression and the operating mind
    doctrine are to be considered together and should not be understood as a
    discrete inquiry completely divorced from the rest of the confessions rule (
Oickle
,
    at para. 63). On the other hand, the use of police  trickery to obtain a confession
    is a distinct inquiry  [given that] its more specific objective is
    maintaining the integrity of the criminal justice system (para. 65).

[16]

Here there was no question
    of any inducements, threats or police trickery. The argument advanced by the
    appellant is that he was a suspect as early as March 24, 2008, when the first
    recorded interview was conducted. He was not cautioned at that time about his right
    to silence or the consequences of speaking with the police.
He relies on a line of Superior Court jurisprudence suggesting
    that a person being questioned by police should be given an appropriate caution
    if he or she is, from an objective point of view, classified as a suspect rather
    than a mere person of interest: see
R. v. A.D.
, [2003] O.J. No. 4901 (S.C.), at paras. 61-75;
R.
    v. Smyth
, [2006] O.J. No. 5527, at paras.
    81-84; and
R. v. Belbin
, 2015
    ONSC 5346, at paras. 105-111.
Consequently, he says, the fact that he was
    not properly cautioned at the first interview coloured what followed during the
    subsequent April 15 polygraph interview. He submits that the effect was to
    undermine the voluntariness of the statements he gave on that subsequent date.

[17]

I do not accept this argument
    for two reasons.

[18]

Firstly, I would defer to
    the trial judges conclusion that the appellant was not a suspect on March 24,
    2008 and not a suspect until he was detained at the end of the interview on
    April 15, 2008. I agree that, although police had reason to believe that the
    appellant might be linked in some fashion to the killings of Ottley and Warne,
    they did not have grounds to arrest him at that time.

[19]

Secondly, whether or not the appellant was a suspect, the
    applicable appellate authority makes clear that, although the absence of a
    caution is a factor to be considered on the voluntariness inquiry, it is not
    determinative:
R. v. Singh
, 2007
    SCC 48, [2007] 2 S.C.R. 405, at para. 31. This proposition applies regardless
    of whether the police do or ought to regard the person being questioned as a
    suspect. This courts decision in
R. v. Bottineau
, 2011 ONCA 194, 269 C.C.C. (3d) 227, leave to appeal
    to S.C.C. refused, [2011] S.C.C.A. No. 455, is instructive. The appellant in
Bottineau
argued that the trial judge erred in ruling that his incriminating
    statements were voluntary because the police failed to provide him with a
    caution when he was by any objective standard  a suspect at the time [the
    police] took his statement rather than a mere person of interest as they
    professed to him he was: para. 85. This court declined to interfere with the
    trial judges ruling. It wrote, at para. 88:

We do not think much turns, in these circumstances, on whether
    N.K. was a suspect or someone more benignly viewed by the police.
Even
    where a person is a suspect, the absence of the standard caution is only one
    factor to be considered in the voluntariness analysis  just as the presence of
    such a caution does not automatically lead to the conclusion that a statement
    is voluntary
. As the trial judge noted, [h]ard and fast rules are
    incapable of accounting for the myriad circumstances that may vitiate
    voluntariness, and all the circumstances must be scrutinized carefully: see
R.
    v. Oickle
, [2000] 2 S.C.R. 3, at paras. 47 and 71. [Emphasis added.]

Thus, the voluntariness inquiry is a contextual one
    that considers all the relevant circumstances and eschews rigid and strict
    rules. See also
R. v. Rowe-Boothe
, 2016 ONCA 987, at paras. 16-21; and
R. v. Pepping
, 2016 ONCA 809, at para. 5.

[20]

In the present case, it was
    abundantly clear that, in his interactions with the police as of March 24, 2008,
    the appellant freely chose to speak to police. At the April 15, 2008 polygraph,
    he explicitly said to the interviewers, No ones going to intimidate me. You
    cant intimidate me. There is no suggestion that his will was overborne by the
    police.

[21]

At the start of the April 15
    interview, police told the appellant he was free to leave, that he could stop
    the polygraph process at any time, that he did not have to speak to police and
    that what he said could be admissible in court. He signed a consent form
    confirming that he did not have to say anything and that anything he said could
    be used in court. He had the benefit of legal advice before both the March 24
    and April 15 interviews.

[22]

There is no basis to
    interfere with the trial judges conclusion that the Crown had proven beyond a
    reasonable doubt that the statements of April 15, 2008 were voluntarily made.

D.

The search of the appellants car on January 15, 2008

[23]

The appellant concedes that
    the traffic stop of the appellants car on January 15, 2008 was lawful. The
    police officer, Smintich, was concerned about impaired driving, given the
    manner in which the car was operated. When he approached the drivers side of the
    car he noticed unusual redness to the appellants eyes. His pupils were dilated
    and the officer smelled burnt marijuana. The appellant was slow in retrieving
    his papers and failed field sobriety tests. Smintich arrested the appellant for
    impaired driving. He searched the appellants vehicle incident to arrest,
    finding shotgun shells in a knapsack in the trunk.

[24]

The trial judges reasons
    for admitting the shotgun shells into evidence are reported at 2011 ONSC 1913.
    He held at para. 34 that the purpose of the search of the trunk and the
    knapsack was to locate evidence helpful to the impaired driving offence and
    that the search of the car was lawful and incident to his arrest for impaired
    driving.

[25]

The argument on appeal is
    that the search incident to arrest went too far. Searching the trunk, and the
    knapsack found in the trunk, for evidence helpful to the impaired driving
    offence was unreasonable, and the search should have been confined to the area
    close to the drivers seat.

[26]

I do not accept this argument.
    The arrest of the appellant for impaired driving was lawful. The search was
    undertaken to look for marijuana and by a police officer who was not involved
    at all in the homicide investigations. Discovery of marijuana in the trunk of
    the appellants car and in his knapsack would have some probative value on the
    issue of whether his ability to drive was impaired by marijuana.  There was a
    reasonable basis for the officers actions and a reasonable prospect of finding
    evidence of the offence for which the appellant had been arrested: see
R.
    v. Caslake
, [1998] 1 S.C.R. 51, at paras. 20 and 22.

E.

The statement of February 19, 2008

[27]

Police stopped the
    appellants vehicle again on February 19, 2008 in a lawful traffic stop. The
    appellant was driving, and his friend Campbell was also in the vehicle. The
    police officer, Brabant, saw a red shotgun shell in plain view on the back
    seat. Both occupants of the vehicle were arrested for careless storage of
    ammunition. Three more shotgun shells were found in the trunk.

[28]

The appellant was cautioned.
    He asked to speak to his lawyer. Before he could exercise his right to speak to
    counsel, Brabant approached him, holding the shotgun shells in his hand and
    asked: Where did these come from? The appellant said that he had found them
    and intended to use them to make firecrackers.

[29]

While in the back of the
    police car on the way to the police station, the appellant asked Brabant if his
    friend had been arrested. When advised that Campbell had also been charged with
    careless storage of ammunition, the appellant blurted out that the ammunition
    was his. In reasons reported at 2011 ONSC 1912, the trial judge found the
    statement was made spontaneously without prompting by Brabant, who was driving
    at the time.

[30]

On appeal, the appellant
    argues that the statement in the back of the police car was tainted by the
    violation of the appellants
Charter
rights caused by the question
    posed by Brabant before he could consult counsel. The trial judge was aware of
    the earlier
Charter
violation and had excluded the appellants
    response to the question.

[31]

The trial judge did not
    explicitly deal with the contextual, temporal and causal relationship between
    the two statements. However, given his factual findings that the appellants
    statement that the shotgun shells were his own was made spontaneously, out of
    concern for his friend, and that the statement was not prompted by any
    investigative step on the part of police, I am satisfied that the connection
    between the
Charter
breach and the statement made from the back seat
    of the police car was tenuous and remote: see
R. v. Wittwer
, 2008 SCC
    33, [2008] 2 S.C.R. 235, at para. 21. The evidence of the appellants utterance
    was not obtained in a manner that infringed or denied any rights or freedoms
    guaranteed by this
Charter
 within the meaning of s. 24(2).

F.

Bad character evidence

[32]

The appellant submits that
    the trial judge should have excluded the following evidence, referred to at
    trial as bad character evidence, on the ground that its probative value was
    outweighed by its prejudicial effect:

1.

The

testimony of two witnesses, who were both friends of the appellant.
    It was their evidence that in December 2007 the appellant had a shotgun and
    showed it to both of them, on separate occasions.

2.

Evidence that shotgun
    shells were located inside the appellants vehicle on January 15, 2008 and
    February 19, 2008.

3.

The testimony of a
    witness that he spent January 14, 2008 with the appellant and Campbell scoping
    out drug dealers residences for the purpose of robbing them. (This evidence admitted
    only in the trial related to the killing of Warne: 2011 ONSC 2571).

[33]

When considering the
    admissibility of bad character evidence, the trial judges weighing of probative
    value and risk of prejudicial effect is owed deference. As Strathy C.J.O.
    indicated in
R. v. Bent
, 2016 ONCA 651, 342 C.C.C. (3d) 343, at para. 48:

Absent an error in principle, substantial deference should be
    given to the trial judges balancing of probative value versus prejudicial
    effect. This deference recognizes that the trial judge is best equipped to
    assess the impact of the evidence on the jury, in the context of the issues and
    evidence at trial. [Citations omitted.]

[34]

I agree with the trial
    judges conclusions that the evidence at issue here was admissible.  The
    appellants possession of a shotgun and shells close in time to the two
    homicides under investigation was relevant to the identity of the killers and
    to the assessment of the appellants testimony that A. killed Ottley and that
    someone else shot Warne. A shotgun was the weapon most likely used in the
    killings. The appellants lurking around Warnes house with a view to ripping
    off a drug dealer was likewise an integral part of the circumstances leading up
    to Warnes death and suggested a motive for the killing. The witnesss
    testimony on this point was corroborated by the appellants own statement to
    the police during the April 15, 2008 polygraph interview that he was at Warnes
    home the night Warne was killed with an intent to rob him.

[35]

Prejudice in the context of
    bad character evidence means the risk that a jury would misuse the evidence,
    not the risk that the evidence would be inculpatory:
R. v. Handy
, 2002
    SCC 56, [2002] 2 S.C.R. 908, at para. 139. The appellants possession of a
    shotgun or shotgun ammunition is not evidence of such a degree of bad character
    as to lead a jury into moral or reasoning prejudice, particularly in the
    context of the other evidence led in this case.

G.

Conclusions

[36]

For these reasons, the appeals are dismissed.

Released: DW MAY 16 2017

G. Pardu J.A.

I agree. David Watt
    J.A.

I agree. K. van
    Rensburg


