Court orders new trial for convicted man
In a case that examined the concept of detention underlying ss. 9 and 10 of the Charter, the Ontario Court of Appeal has given a man convicted of murder a new trial.
A jury convicted Keenan Corner of second-degree murder for shooting and killing his friend and drug-trafficking partner. Corner had initially called the police to the crime scene, telling them that he and the deceased, Shabir Niazi, had been the victim of a drug robbery. He eventually became a suspect and was arrested. But before that, Corner had given statements to the police about his version of events, first in the police cruiser at the scene and later at the police station. The appeal in R. v. Corner, 2023 ONCA 509, turned on the admissibility of the evidence he gave during the beginning portion of the police station interview.
Stephanie DiGiuseppe, who acted for Corner, says the decision provides a useful analysis of police detention in relation to s. 9 and s. 10 of the Charter.
“It brings a lot of clarity to the law around detention, and Justice [David] Doherty interacts with the facts and applies the law to the facts in a very useful way,” she says.
“Practitioners will be able to look to this case to get a very comprehensive overview on how to determine if somebody is detained, which is a legal concept that underlies s. 9 and s. 10 of the Charter and that is notoriously difficult for practitioners and judges to analyze.”
Corner, the appellant, raised three grounds of appeal, including that the trial judge had erred in admitting Corner’s statements to the police during his police station interview. A key question before Court of Appeal Justices David Doherty, Kathryn Feldman, and Gary Trotter was whether a reasonable person in Corner’s position would have believed themselves to be detained during the interview.
Under the Charter’s s. 9, everyone has the right not to be arbitrarily detained or imprisoned. Under s. 10, everyone has the right on arrest or detention to be informed promptly of the reasons, to retain and instruct counsel without delay and to be informed of that right. For the purposes of ss. 9 and 10, detention occurs where someone’s “liberty interests are significantly restrained by state authority,” said Doherty, who wrote the reasons for the court. “Psychological detention” is when state conduct would cause a reasonable person to believe “that their liberty interest was compromised such that they were under the control and direction of the police and unable to come and go as they wish,” he said.
The psychological detention inquiry from R. v. Grant, 2009 SCC 32 consists of three categories of factual considerations: how the individual would reasonably perceive the circumstances leading to the encounter, the nature of the police conduct, and circumstances or characteristics of the individual, including factors such as age and minority status.
Corner arrived at the police station around 5 pm and left ten hours later at 3 am the next morning. Before 7:40 pm, the police had not told Corner that he had the right to remain silent, speak with a lawyer, end the interview and leave. These requirements under s. 10 were only fulfilled after the officer received an update from his colleagues who had continued the investigation. At this point, the officer confronted Corner with the inconsistencies in his drug-robbery story revealed by conversations with other witnesses. The interview’s tone changed, and the officer told Corner he did not believe his version of events. The trial judge found that Corner’s detention began at 7:40 pm when the officer’s attitude shifted, and he was treated more like a suspect than a witness. Corner argued on appeal that he was detained for the entire interview.
The Court of Appeal agreed that Corner was detained when he was placed in the interview room at around 5 pm. The evidence showed that he was under “total control” – the police had taken his wallet and cell phone, he was isolated in a non-public section of the police station away from the other witnesses, he needed permission to use the washroom, and he was generally not free to come and go as he pleased. The police had also decided to test the appellant’s hands for gunshot residue, which the court said was an important indication that he was detained. The police did not ask his permission, and they needed to maintain control over him to perform the test effectively; otherwise he might wash his hands, said Doherty.
The court found Corner’s rights under ss. 9, 10(a), and 10(b) were infringed and turned to s. 24(2) to determine whether the evidence obtained through the Charter-violating conduct should be excluded. Admissibility is decided with the three-factor analysis from Grant: the seriousness of the Charter-infringing conduct, the impact of the infringement on Charter-protected interests, and society’s interest in the adjudication of the case on its merits.
The Court of Appeal found that the Charter breaches occurred when the interview began and exacerbated the seriousness of the Charter violations that occurred after 7:40. While the exclusion of the statements removes “some additional reliable evidence” from the Crown’s case, “significant evidence” remains, said the court.
The court allowed the appeal and ordered a new trial.
