I.   Introduction: Good ol’ Windsor

Everyone knows the old joke about the man who walked across Texas, looking for his dog. When he got to the Oklahoma border, he stopped, turned around, and found his dog behind him. The moral of the story is that sometimes you can find what you are looking for right in your own backyard.

The same is true when it comes to criminal cases. There are plenty of solid criminal cases that arose right here in good ol’ Windsor, and the three helpful, historical cases that I am going to discuss in this paper deal with such diverse topics as: alibi, evidence of criminal association, the cross examination of a witness as to prior disreputable conduct, validity of arrest, and arbitrary detention, as well as Charter relief. These cases are easy to remember, and all have stood the test of time.

II.   Davison, Derosie & MacArthur: Robbin’

R v Davison, Derosie & MacArthur (1974), 20 CCC (2d) 424, is a terse and brilliant decision by Justice G. Arthur Martin. The facts of the case were dramatic: on December 18, 1971, a handful of armed robbers staged a heist Hollywood would have been proud of, and made off with close to $1.2 million in currency from the Royal Bank located at 156 Ouellette Avenue. The money represented a weekend’s earnings from the Windsor Raceway. Following some dogged police work, the money was found in a steamer trunk in Toronto, and ultimately Davison, Derosie, MacArthur and three others were tried in Windsor for bank robbery.

Suffice it to say the case attracted considerable national interest—the bank job was reported to have been the largest in Canadian history. The case was prosecuted by the late Bruce Affleck (one time defence counsel to Guy Paul Morin) and among the local counsel involved was the late Justice Larry Morin.

In any event, this case is valuable for a host of reasons: first, it is a judgment of Justice Martin, whose decisions are always highly regarded; second, leave to appeal to the Supreme Court was denied; third, the range of legal issues dealt with in the judgment were fairly broad and are still considered solid.

Aibi evidence was tendered by each of the three principal accused, and in particular the evidence of Derosie was that he was in Montreal at the time of the robbery--an alibi supported by documentary evidence, and nine witnesses. Davison, in his evidence, admitted to having committed other offences, some of which he had not been charged with—this curious strategy was part of an effort to bolster Davison’s credibility. A search warrant at Davison’s residence revealed his peculiar literary taste: a few dog eared volumes of the Safeman’s Guide, the Locksmith’s Ledger were located, along with a police band radio.

The stakes in the case were quite serious, and after the three principals were convicted by a jury, their sentencing was swift and sure: Davison and Derosie were each handed 20 year jail terms, while MacArthur received a more lenient sentence of 15 years jail.

While the trial judge’s charge on the issue of alibi was far from perfect, it was not enough to warrant a new trial. In a fine summary of the law, Justice Martin wrote that where an alibi is tendered, the “mere disbelief of the alibi advanced does not constitute proof that it was false in the sense of being fabricated”. The distinction is a somewhat narrow one but it boils down to this: where there is some real evidence that an alibi has been concocted, or that witnesses have suborned perjury, it can be used as an inference of guilt. The fact that an alibi has not been proven by an accused, or that a jury has doubts as to its veracity, means only that the alibi is rejected in much the same way a jury can reject any piece of circumstantial evidence.

A more recent retelling of the law of alibi is found in R. v. Coutts and Middleton (1998), 126 CCC (3d) 545, a decision of the Ontario Court of Appeal authored by Justice Doherty. In this arson case, the Crown’s expert gave evidence the fire was deliberately started. The accused gave inculpatory statements to the police, and repeated that evidence at trial. There were some inconsistencies in the statements, but nothing of any great consequence.

The trial judge referred to the Crown’s theory that the accused “gave statements to the police which were intentionally misleading”, and opined that “the fact an accused person has made a false statement may be evidence of consciousness of guilt and may be considered by you in light of all the other evidence”. The trial justice added “it is not enough that you don’t believe a statement made by the accused. You should only consider whether you wish to infer a consciousness of guilt, if you find that a significant statement was made by the accused, that it was false, and that it was intentionally false.”

The Court of Appeal considered this to be totally improper and noted quite forcefully that there is a distinction to be drawn between statements or testimony of an accused which are disbelieved and therefore rejected, and those statements or testimony which are found to be concocted. Citing with approval Davison, Derosie & MacArthur, the court had the following words: “If triers of fact were routinely told that they could infer concoction from disbelief and use that finding of concoction as evidence of guilt, it would be far too easy to equate disbelief of an accused’s version of events with guilt, and to proceed automatically from disbelief to a guilty verdict. That line of reasoning ignores the Crown’s obligation to prove an accused’s guilt beyond a reasonable doubt”. The concern here is to ensure the distinction is being made between cases of actual evidence of concoction, as opposed to evidence that would invite rejection of the accused’s version of events.

On another level, the Davison, Derosie and MacArthur decision is of quick utility in respect of s. 12 of the Canada Evidence Act: “A witness may be questioned as to whether he has been convicted of any offence, and upon being so questioned, if he either denies the fact or refuses to answer, the opposite party may prove such conviction”.

It never ceases to amaze me how many Crown counsel think this means that a lay witness, rather than an accused, can only be questioned as to criminal convictions simpliciter, and not the surrounding circumstances. The Davison decision set the record straight on this one: “…an ordinary witness may be cross examined with respect to discreditable conduct and associations, unrelated to the subject-matter of his testimony, as a ground for disbelieving his evidence”. In other words, lay witnesses are fair game, but criminal defendants are not: “…an accused may not be cross-examined with respect to misconduct or associations unrelated to the charge on which he is being tried for the purpose of leading to the conclusion that by reason of his bad character he is a person whose evidence ought not to be believed.”

III.   Storrey: Fightin’

Fights between young American men and young Canadian men have been a staple of criminal work in Windsor for many years. That was factual background of R v. Storrey (1990), 53 CCC (3d) 316, another local case that made its way to the Supreme Court of Canada, from an incident that took place in 1983.
The facts of this case again, are so familiar they read as folklore: American men in their car, stopped at the border by Canadians in their car, the Canadian driver punching one of the Americans, another Canadian slashing the American’s tires, the Canadians fleeing.
A photo lineup was undertaken, but the closest match was that of a person who had a solid alibi. The police investigation then centred on the Canadian car—a Ford Thunderbird—which lead to a suspect, Storrey, who resembled the party identified in the photo lineup. Storrey had a criminal record for crimes of violence.

As a result, Storrey was arrested. A further line up was conducted (it would appear to have been a physical line up), wherein Storrey was identified as the assailant.
It was contended that Storrey’s right under s. 9 of the Charter—not to be arbitrarily detained or imprisoned—was breached. The argument advanced (and which convinced the trial judge) was that Storrey’s arrest was for an investigative purpose only. A stay was ordered.
On appeal, the inquiry became one of what constituted “reasonable and probable grounds” to effect an arrest. The court concluded the following: it was not sufficient that the police officer believe that he had reasonable grounds to make an arrest, rather it must be objectively established that those reasonable and probable grounds did in fact exist. This would require a “reasonable person standing in the shoes of the police officer” to have that belief. It was not necessary, however, for a prima facie case for conviction before making an arrest.

Here, there was “ample evidence” to justify the finding of reasonable and probable grounds: the possession and ownership of the vehicle; the resemblance of Storrey to the person picked out of the photo lineup; Storrey’s record for violence; and police information that Storrey had been stopped, on other occasions, in the vehicle. The “cumulative effect” of these factors, the court ruled, was enough to constitute reasonable and probable grounds, and the trial justice’s ruling in this regard was overruled, and the stay was set aside.

Storrey continues to make the rounds in current caselaw, and was most recently spotted in the fairly innocuous Supreme Court of Canada decision of R v. Feeney (1997), 115 CCC (3d) 129. The facts of Feeney are too detailed to go into here, but suffice it to say Storrey was cited with approval, and the upshot of the decision—namely that an arrest warrant is required prior to police entering a dwelling house to make an arrest (absent hot pursuit)—is one that has had far reaching implications for law enforcement and Charter litigation.

IV.   Duguay, Murphy & Sevigny: Stealin’

On a more local and perhaps pedestrian level is the case of R v. Duguay, Murphy & Sevigny (1985), 50 O.R. (2d) C.A., one of the first key Charter cases on the issue of arbitrary detention. My historical information on this matter is somewhat sketchy: I recall acting for Mr. Duguay later in his life on a relatively minor matter, and he told me--I believe--that his trial counsel was Don Tait. The matter was ultimately appealed, unsuccessfully, to the Supreme Court of Canada: the Crown was represented by Bruce Duncan.

The facts of this case are unremarkable, challenging in their simplicity, and seem to be almost mythical in their recurrence: three young men are drinking beer drinking in a backyard, a neighbouring homeowner leaves, his home is the subject of a break and enter. Windsor Police attend the residence of the suspected culprit the next day, direct three young men to sit in a police cruiser, and subsequently the inevitable incriminating remark is uttered, and cooperation ensues, resulting in the recovery of the stolen property. But was the detention arbitrary? And if so should the evidence have been excluded?

Of importance in this discussion are the provisions of s. 450(1) of the Code which provides that “A peace officer may arrest without a warrant…a person who has committed an indictable offence or who, on reasonable and probable grounds, he believes has committed or is about to commit an indictable offence.”

It was found as a fact that the arrest was made, in the words of one of the officers, “to determine whether they actually did it or not.” Despite the fact the arresting officers stated they believed they had reasonable grounds to effect an arrest, the court did not see it that way, and took a dim view of arrests for investigative purposes, and quoted from another decision of Justice Martin, R. v. Dedman (1981), 59 C.C.C. (2d) 97, that:

... a police officer has no right to detain a person for questioning or for further investigation. No one is entitled to impose any physical restraint upon the citizen except as authorized by law, and this principle applies as much to police officers as to anyone else. Although a police officer may approach a person on the street and ask him questions, if the person refuses to answer the police officer must allow him to proceed on his way, unless, of course, the officer arrests him on a specific charge or arrests him pursuant to s. 450 of the Code where the officer has reasonable and probable grounds to believe that he is about to commit an indictable offence.

It was clearly the trial judge's view that the officers were not speaking truthfully when they said they believed they had reasonable and probable grounds for arresting the accused. They had neither grounds nor an honest belief that they had the necessary grounds. These being the findings of fact, I cannot see that there was any error in law in the finding made by the trial judge with relation to s. 9.

In determining whether to exclude evidence under s. 24 of the Charter, the court was mindful of the fact the arrest was not made in good faith, which led to the inference the breach was a serious one. Further, the offence was not considered a serious one. Additionally, there was no sense of urgency, and one of the youths (Duguay) who was arrested was not even a suspect. In short, the highhanded nature of the “investigative detention” facilitated the exclusion of the evidence.

In what is probably no surprise to local counsel, a strong dissent was authored by Justice Zuber, who opined that “A person untutored in the law but believing that the primary purpose of the criminal law is the protection of the public would find the result in this case difficult to understand”. Without giving the dissent judgment any more time than it is worth, it did compel an appeal to the Supreme Court of Canada, where the appeal was dismissed, despite a lengthy, sole dissent from Justice L’Hereux Dube.

For a quick update on Duguay, take a look at R v. Simpson (1993), 79 CCC (3d) 482, a short and extremely helpful decision of the Ontario Court of Appeal, and again another nice decision authored by Justice Doherty. Here, a police officer stopped a vehicle leaving a suspected “crack house”. The court held that although an “investigative detention” was permitted under Canadian law, there had to be a “constellation of objectively discernable facts” - a mere hunch based entirely on intuition gained by experience could not suffice. In this case, there was no “articulable cause” for the detention, ergo the detention was unlawful and arbitrary, and the violation was serious and clear, resulting in the exclusion of the narcotic.

V:   Conclusion: Litigatin’

There are probably many other cases that could and maybe should form part of this paper. What about, say, R v. Carosella, on the issue of the Third Party Records? What about, say, R v. Holden, a recent case of the Ontario Court of Appeal on the issue of identity? What about, say, R v. Trombley, a murder case that went to the Supreme Court of Canada on the issue of self-defence? What about R. v Dunbar and Logan, on the issue of solicitor-client privilege? What about R v. Debot, from Chatham, on the veracity of police “tips”?

“All politics”, as Tip O’Neill once stated, “is local”. Let us keep in mind our local cases and our local history—it ain’t half bad and it might help out in a pinch.

Postscript: This paper was delivered at the Windsor Criminal Lawyers’ Association educational conference and retreat held April 17, 2001, at Windsor. There is, I think, a popular misconception that excellence in criminal law practice is to be found only in big cities. These three cases, and those cited in the penultimate paragraph, have stood the test of time, and were the product of hard working, committed and creative counsel.

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